V 


•  10. 


THE  LAW  OF  TAXATION. 


EZRA  A.  BOURNE 


VERSUS 


CITY  OF  BOSTON. 


R  E  P  0  R  T 


OB'  THE  CASE  OF 

EZRA  A.  BOURNE 

VERSUS 


THE  CITY  OF  BOSTON, 

TRIED  IN  THE 

SUPREME  JUDICIAL  COURT 

OF 

MASSACHUSETTS, 


AT  DEDHAM,  MARCH,  1853. 


RETORTED  BT 

WILLIAM  ROGERS, 

COUNSELLOR  AT  LAW. 


/ 


BOSTON: 

1  8  5  3. 

EASTBURN’S  PRESS. 


20,  /?°Y 


NOTE. 

A  report  of  this  case,  involving  as  it  does  the  subject  of  taxa¬ 
tion,  and  the  law  of  domicil  applicable  thereto,  was  thought  likely 
to  be  of  much  interest  to  the  public.  The  reporter  attended  the 
trial,  and  took  full  minutes  ;  and  this  report  is  believed  to  present 
an  accurate  statement  of  the  case.  The  importance  of  the  prac¬ 
tical  points  decided,  both  of  law  and  evidence,  seemed  to  ren¬ 
der  it  desirable  to  make  a  more  minute  report  of  the  whole  pro¬ 
ceedings  than  is  usual. 


Digitized  by  the  Internet  Archive 
in  2019  with  funding  from 
Duke  University  Libraries 


https://archive.org/details/reportofcaseofezOObour 


SUPREME  JUDICIAL  COURT. 


NORFOLK  SS.  FEBRUARY  TERM,  1853. 

Before  Hon.  B.  F.  THOMAS,  Justice. 

EZRA  A.  BOURNE  y.  CITY  OE  BOSTON. 


Edward  D.  Sohier,  ) 

Charles  A  Welch  (  Counsel  for  the  Plaintiff. 

P.  W.  Chandler,  City  Solicitor,  for  the  Defendant. 


This  was  an  action  of  contract,  brought  by  Ezra  A. 
Bourne,  described  as  of  Newport,  in  the  State  of  Rhode 
Island,  gentleman,  against  the  City  of  Boston,  wherein  the 
plaintiff  alleged  that  the  defendant  owed  him  $3,571.50,  for 
money  received  by  the  defendants  to  the  plaintiff’s  use.  The 
writ  was  dated  November  29,  1851,  and  was  made  returnable 
to  the  Court  of  Common  Pleas  for  the  County  of  Norfolk,  on 
the  third  Tuesday  of  February,  1852.  The  case  was  re¬ 
moved  to  the  Supreme  Judicial  Court,  upon  the  defendant’s 
affidavit,  in  the  usual  form,  April  29,  1852. 

The  plaintiff’s  bill  of  particulars  was  as  follows  : 


2 


“  City  of  Boston  to  E.  A.  Bourne,  Dr. 

“  1st.  To  amount  of  taxes  upon  personal  property  and 
poll  tax  illegally  assessed  upon  him  and  paid  by  him  under 
protest,  November  29,  1851,  by  the  hand  of  E.  D.  Sohier, 
$3,571.50.” 

The  answer  of  the  city  admitted  that  the  said  sum  had 
been  received  by  the  city,  and  was  paid  under  protest ;  but 
denied  that  the  city  owed  the  plaintiff  the  same  or  any  part 
thereof ;  or  that  the  city  received  the  same  or  any  part  thereof 
to  the  plaintiff’s  use  ;  or  that  the  same  or  any  part  thereof 
was  paid  for  taxes  illegally  assessed  to  him ;  and  it  alleged 
that  the  said  money  was  paid  by  the  plaintiff  to  the  defend¬ 
ant  for  city  of  Boston  and  county  of  Suffolk  taxes,  legally 
assessed  to  him  upon  his  personal  property  and  for  his  poll 
tax. 

The  trial  of  the  case  commenced  at  Dedham,  in  Norfolk 
county,  on  the  2d  day  of  March,  1853. 

Mr.  Welch  opened  the  case  for  the  plaintiff.  He  stated 
to  the  jury,  that  the  tax  which  Mr.  Bourne  sought  to  recover 
back,  consisted  of  three  classes ;  1st,  his  poll  tax  and  the  tax 
upon  his  own  personal  property ;  2d,  the  tax  upon  the  per¬ 
sonal  property  of  his  wife,  held  by  him  in  trust  ;  and  3d,  the 
tax  assessed  upon  him  as  guardian  and  trustee  for  the  Miss 
Thorndikes,  the  daughters  of  his  wife  by  her  former  husband. 
The  taxes  upon  real  estate  situated  in  Boston  were,  of 
course,  properly  assessed  in  Boston.  But  in  relation  to  the 
taxes  upon  his  own  personal  property  and  that  of  his  wife, 
those  could  only  be  assessed  to  him  in  the  town  where  he  was 
an  inhabitant  on  the  first  day  of  May,  1S51  ;  and  the  same 
rule  applied  to  the  tax  upon  the  personal  property  held  by 
him  as  guardian  of  the  younger  Miss  Thorndike.  In  relation 
to  the  personal  property  held  by  Mr.  Bourne  as  trustee  of  the 
young  lady  who  was  of  age  on  the  1st  day  of  May,  a  still 
further  question  arose  ;  and  he  should  maintain  that  for  the 
portion  of  the  tax  assessed  thereon,  Mr.  Bourne  was  not 


3 


legally  taxed,  wherever  his  residence  might  have  been.  The 
personal  property  of  a  minor  under  guardianship  was,  by  the 
Revised  Statutes,  to  be  assessed  to  the  guardian,  in  the  town 
of  which  he  was  an  inhabitant ;  but  personal  property  held 
in  trust,  for  the  benefit  of  a  person  who  was  not  a  married 
woman  or  a  minor,  was  to  be  assessed  to  the  person  for 
whose  benefit  the  property  was  held  in  trust,  in  the  place 
where  such  person  resided.  This  part  of  the  tax  should  not 
have  been  assessed  to  Mr.  Bourne  in  any  event. 

These  taxes  having  been,  as  the  counsel  contended,  ille¬ 
gally  assessed  upon  Mr.  Bourne,  he  was  compelled  to  pay 
them,  to  avoid  having  his  person  arrested  or  his  property 
taken  by  process  of  law  ;  and  he  did  pay  the  same  under 
protest.  He  now  brought  this  action  to  recover  back  the 
amount.  The  main  question  for  the  jury  now  to  determine 
would  be,  was  Mr.  Bourne  an  inhabitant  of  Boston,  for  the 
purpose  of  taxation,  on  the  1st  day  of  May,  1S51.  The 
question  where  he  did  reside  was  of  secondary  importance. 
If  he  was  not  an  inhabitant  of  Boston,  if  that  was  not  his 
legal  domicil,  he  was  certainly  not  taxable  in  Boston.  But 
if  he  was  an  inhabitant  of  any  other  place,  he  could  not  be 
an  inhabitant  of  Boston.  A  person  can  have  but  one  such 
residence,  at  any  particular  time,  as  will  render  him  liable  to 
taxation.  Our  courts  have  decided  that,  in  a  doubtful  case 
upon  a  question  of  residence,  a  mere  declaration  of  an  inten¬ 
tion  to  reside  in  one  town  rather  than  in  another,  will  be 
sufficient  to  turn  the  scale.  An  election  to  be  taxed  in  one 
town  rather  than  in  another,  has  the  same  effect.  If  a  person 
has  a  domicil  in  one  place,  that  domicil  continues  until  he 
has  acquired  a  domicil  in  some  new  place.  He  should  main¬ 
tain  that  another  place,  and  not  Boston,  was  the  place  of  Mr. 
Bourne’s  residence  on  the  1st  day  of  May,  1851.  This  would 
appear  from  the  facts  of  the  case,  which  he  would  briefly 
state. 

In  1847,  and  for  many  years  previous,  Mr.  Bourne  resided 
_in  Boston,  in  the  house  of  his  wife  in  Pemberton  Square,  the 
year  round,  except  for  a  portion  of  the  year,  which  he  spent 
in  a  visit  to  his  farm  on  the  Eastern  shore  of  Maryland.  In 


4 


1848,  he  moved  to  Brookline  in  this  county,  in  the  latter 
part  of  April,  and  remained  until  November  of  the  same  year. 
When  he  removed,  he  gave  notice  to  the  assessors  of  Boston 
and  of  Brookline,  that  he  had  changed  his  place  of  residence 
from  the  former  to  the  latter  place.  He  was  taxed  in  Brook¬ 
line  that  year,  and  paid  his  tax ;  and  he  was  not  taxed  in 
Boston.  In  1S49,  he  again  went  to  Brookline  in  April,  and 
returned  in  October  or  November ;  was  taxed  and  paid  his 
tax  in  Brookline,  and  was  not  taxed  in  Boston.  In  1849,  he 
hired  a  house  in  Newport,  on  a  lease  of  five  years.  In  April, 

1850,  he  removed  to  Newport,  in  the  State  of  Rhode  Island, 
and  notified  the  assessors  of  Newport.  He  was  taxed  that 
year  in  Newport,  paid  his  taxes  there,  and  was  not  taxed  in 
Boston.  He  returned  to  Boston  in  the  fall.  During  his  ab¬ 
sence,  he  left  his  house  in  Boston  under  the  charge  of  his 
domestics.  He  left  orders  with  his  trades-people  to  supply 
his  domestics  with  provisions  and  groceries.  He  had  pro¬ 
perty  invested  in  Boston,  and  he  did  not  change  his  invest¬ 
ments  when  he  removed.  In  April,  1851,  he  again  removed 
to  Newport.  His  daughter-in-law,  Mrs.  Rice,  came  on  from 
Maryland,  where  she  resided,  to  Boston,  in  the  spring  of 

1851,  and  Mr.  Bourne  gave  her  the  use  of  his  house  while 
she  was  here.  She  was  about  to  be  confined,  and  was 
anxious  to  be  under  the  care  of  Dr.  Warren,  who  had  always 
been  the  family  physician.  Mr.  Bourne  left  his  carriage  in 
Boston,  and  allowed  Mrs.  Rice  to  make  use  of  it  when  she 
wished  to  ride  out,  and  did  everything  in  his  power  to  make 
her  comfortable.  He  and  Mrs.  Bourne  then  paid  their  usual 
spring  visit  to  their  farm  on  the  Eastern  shore  of  Maryland. 
Mrs.  Bourne  returned  first,  and  was  with  her  daughter  during 
the  most  dangerous  period  of  her  illness.  Mr.  Bourne  after¬ 
wards  came  on  from  Maryland,  and  resided  at  Newport, 
where  Mrs.  Rice  and  the  rest  of  the  family  joined  him  when 
she  had  sufficiently  recovered,  and  they  spent  the  summer 
there.  He  was  taxed  that  year  in  Newport,  and  paid  his 
taxes  there. 


Mr.  Welch  then  put  into  the  case  what  were  supposed  to 


5 


be  copies  of  the  tax  bills  paid  by  Mr.  Bourne  under  protest, 
the  originals  having  been  lost.  These  were  three,  and  were 
dated  October  1,  1851. 

1.  Ezra  A.  Bourne. 

Poll, . 1.50 

Personal  estate  or  income,  -  -  875.00 


$876.50 

2.  Ezra  A.  Bourne,  trustee  of  Mrs.  M.  M.  Bourne. 
Real  estate,  -  175.00 

Personal  estate  or  income  -  -  875.00 


$1050.00 

3.  Ezra  A.  Bourne,  trustee  and  guardian  of  the  Misses 
Thorndike. 

Real  estate,  -  366.10 

Personal  estate  or  income,  -  -  1820.00 


$2186.10 

He  also  put  in  the  summonses  thereon,  issued  in  the  usual 
form,  and  dated  November  20,  1851.  It  was  admitted  that 
all  of  the  above  taxes  had  been  paid  by  Mr.  Bourne,  under 
protest,  except  those  on  real  estate. 

Mr.  Welch  then  put  in  the  answers  of  George  E.  Head, 
one  of  the  assessors  of  the  city  of  Boston,  to  certain  inter¬ 
rogatories  proposed  by  the  plaintiff,  as  follows  : — 

1.  A  tax  was  assessed  upon  Ezra  A.  Bourne  upon  personal 
property  in  1847,  and,  from  the  books  of  the  treasurer  of  said 
city,  said  tax  appears  to  have  been  paid.  This,  I  believe, 
was  the  last  tax  on  personal  property,  assessed  upon  Mr. 
Bourne,  prior  to  July,  1851. 

2.  I  find  on  the  files  in  the  assessors’  office  for  1848  and 
1849,  letters,  of  which  the  copies,  dated  in  those  years,  and 
annexed  to  the  interrogatories,  are  correct.  I  do  not  find  let¬ 
ters,  dated  in  1850  and  1851,  of  which  papers  purporting  to 
be  copies  are  annexed  to  the  interrogatories,  and  therefore 
am  unable  to  answer  in  regard  to  them.  The  letters  of  1848 


6 


and  1849  were  addressed  to  the  permanent  and  assistant 
assessors  of  the  city  of  Boston,  and  must  have  been  received 
by  them. 

The  following  were  the  copies  annexed  to  the  said  inter¬ 
rogatories  : — 

Brookline,  Mat  1,  1848. 

To  the  permanent  and  assistant  Assessors  of  the  City  of 

Boston : 

Gentlemen, — 

This  is  to  give  you  notice,  that,  on  the  29th  ult.,  I  removed 
together  with  my  whole  family,  from  my  house  in  Boston  to 
my  house  in  Brookline,  where  I  am  domiciliated,  and  a  citi¬ 
zen  according  to  law,  on  this  first  day  of  May,  1848,  and 
where  I  propose  to  reside  and  pay  all  my  taxes  for  the  future, 
excepting  upon  real  estate  in  Boston,  as  trustee,  for  which 
only  shall  be  legally  liable. 

Respectfully, 

Your  obedient  servant, 

E.  A.  BOURNE. 

Brookline,  Mat  1,  1849. 

To  the  permanent  and  assistant  Assessors  of  the  City  of 

Boston : 

Gentlemen, — 

This  is  to  give  you  notice,  that  I  have  removed  to  my 
house  in  Brookline,  where  I  am  domiciliated  and  a  citizen, 
according  to  law,  on  this  first  day  of  May,  1849,  and  where 
I  propose  to  reside,  and  pay  all  my  taxes  for  the  future,  ex¬ 
cepting  upon  real  estate  as  trustee  and  guardian,  for  which 
only  I  shall  be  liable,  as  follows,  viz. : — 

House  No.  19  Pemberton  Square. 

Do.  do.  5  Otis  Place. 

Do.  do.  6  do. 

Do.  do.  7  do. 

Do.  do.  6  Winthrop  Place. 

Respectfully, 

Your  obedient  servant, 

E.  A.  BOURNE. 


(Signed) 


7 


Gentlemen, — 

I  would  give  you  notice  that  I  am  liable  to  be  taxed,  as 
trustee  and  guardian,  upon  the  same  real  estate  as  last  year, 
in  the  city  of  Boston.  I  shall  be  domiciliated  in  my  house 
out  of  this  city,  on  or  before  May  1st,  1850,  where  I  shall  be 
taxed  upon  my  personal  property,  for  the  future,  as  hereto¬ 
fore. 

Respectfully, 

Your  obedient  servant, 

E.  A.  BOURNE. 

To  the  'permanent  and  assistant  Assessors  of  the  city  of 

Boston. 

April  26,  1850. 

I  would  give  you  notice  that  I  am  liable  to  be  taxed,  as 
trustee  and  guardian,  upon  the  same  real  estate  as  last  year, 
in  the  city  of  Boston. 

I  shall  be  domiciliated  in  my  house,  out  of  this  city,  on  or 
before  May  1,  1851,  where  I  shall  pay  all  taxes  upon  my 
personal  property,  for  the  future,  as  heretofore. 

Respectfully, 

Your  obedient  servant, 

(Signed)  E.  A.  BOURNE. 

To  the  permanent  and  assistant  Assessors  of  the  city  of 

Boston. 

April  26,  1851. 

The  following  witnesses  were  then  called,  sworn,  and  ex¬ 
amined,  on  behalf  of  the  plaintiff  : — 

Charles  Stearns. — I  reside  in  Brookline,  in  Norfolk  Coun¬ 
ty.  I  was,  in  1848,  1849,  1850,  and  1851,  an  assessor  for 
the  town  of  Brookline.  I  know  the  plaintiff,  Ezra  A.  Bourne. 
He  was  assessed  as  an  inhabitant  of  Brookline  in  1848  and 
1849.  I  found  him  in  Mr.  Francis’s  house,  in  the  north  part 
of  the  town,  when  I  went  to  assess  the  taxes.  It  was  on  the 
1st  day  of  May,  1848.  I  saw  him  myself.  He  gave  us 
notice,  in  April,  of  his  intention  to  reside  in  Brookline.  I 


8 


saw  him  there  at  other  times.  He  was  also  assessed  in  1849. 
He  paid  his  taxes  in  each  of  those  years.  I  live  within  three 
quarters  of  a  mile  of  the  house  in  which  he  lived  in  Brook¬ 
line.  I  saw  him  frequently. 

Cross-examined. — I  could  not  say  what  day  in  April  he 
gave  notice  to  the  assessors.  It  was  by  letter.  The  letter 
was  dated  in  Boston.  I  looked  for  it  the  other  day,  and 
could  not  find  it.  This  letter  stated  that  he  intended  to  re¬ 
side  in  Brookline,  and  wished  to  be  taxed  there.  I  found 
him,  on  the  1st  of  May,  in  Mr.  Eben.  Francis’s  house.  It 
was  in  the  north  part  of  the  town,  between  the  mill  dam 
road  and  Charles  River.  It  is  remote.  No  road  passes  by  it. 
The  land  was  taxed  to  Mr.  Francis  ;  the  house  to  Mr.  Bourne. 
His  tax,  in  1848,  was  $136.55.  His  tax  on  the  house  was 
about  $6.  His  whole  tax,  as  trustee  and  guardian,  was 
$136.55.  I  cannot  tell  what  the  items  were,  as  I  did  not 
take  them  down.  I  don’t  recollect  whether  any  return  of 
stocks  were  made  from  the  officers  of  corporations  to  the 
assessors  of  Brookline.  We  doomed  him. 

Otis  Withington. — I  have  been  collector  of  Brookline 
since  March,  1849.  Mr.  Bourne  paid  me  taxes  in  1S49.  I 
left  his  bill  at  the  house  owned  by  Mr.  Eben.  Francis.  I 
did  not  see  him  then.  He  came  to  my  house  and  paid  the 
taxes,  just  before  the  1st  of  October.  I  was  not  collector  in 

1848. 

Cross-examined. — The  amount  of  Mr.  Bourne’s  tax,  in 

1849,  was  $147.50.  His  tax  as  trustee  was  $70  ;  as  guardian, 
$50.  He  was  taxed  for  his  poll,  $1.50  ;  for  real  estate,  $6  ; 
personal  estate,  $140.  I  do  not  know  whether  he  requested 
to  be  taxed  on  his  house.  I  had  no  tax  against  him  in  1850. 
The  house  was  remote,  on  the  banks  of  Charles  River. 

Direct  resumed. — The  house  was  just  off  cf  the  mill  dam 
road.  An  avenue  leads  to  it.  It  is  a  large  house. 

Cross-examined. — The  house  might  rent  for  $400  or  $500 
this  year ;  it  might  for  more.  I  should  think  $150  would  be 
a  cheap  rent. 

Direct  resumed. — Another  family  lived  in  the  part  called 


9 


the  farm  house.  One  part  is  called  the  farm  house,  and  the 
other  part  the  mansion  house.  A  farmer  carried  on  the  farm. 

Charles  Stearns,  recalled  by  the  defendant.  Mr.  Bourne’s 
whole  tax  was  less  in  1848  than  in  1849.  We  did  not  tax 
him  in  1850.  I  did  not  find  any  body  in  the  house  in  1850. 

Mr.  Welch  then  put  in  the  following  depositions  : — 

DEPOSITION  OP  NATHAN  B.  HAMMETT, 

OF  NEWPORT,  R.  I. 

Questions  by  the  plaintiff’s  counsel. 

1.  What  town  office  did  you  hold  in  the  year  1850? 
what  in  the  year  1851  ? 

Ans.  I  was  one  of  the  assessors  of  taxes,  and  one  of  the 
town  auditors,  in  the  years  1850  and  1851. 

2.  Do  you  know  the  plaintiff  in  this  suit,  Mr.  Ezra  A. 
Bourne  ? 

Ans.  He  saith  that  he  is  acquainted  with  the  said  Mr. 
E.  A.  Bourne. 

3.  Whether  or  not  was  the  said  Bourne  an  inhabitant  of 
the  town  of  Newport  during  the  years  1850  and  1851,  or 
either  of  them  ? 

Ans.  The  said  Ezra  A.  Bourne  was  an  inhabitant  of  said 
Newport,  in  the  years  1850  and  1851. 

4.  Whether  or  not  was  any  tax  assessed  upon  him,  as 
upon  personal  property  or  his  poll,  during  said  years,  or  either 
of  them  ;  and  if  yea,  did  he  or  not  pay  the  same  ? 

Ans.  Mr.  Bourne  was  assessed  a  personal  property  tax, 
on  the  sum  of  ten  thousand  dollars,  in  the  year  1850,  and 
a  personal  property  tax  on  thirty  thousand  dollars,  in  the 
year  1851.  The  tax  book  shows  that  he  paid  the  said 
taxes. 


Cross  interrogatories  by  the  defendants'  counsel. 

1.  How  long  have  you  known  the  plaintiff,  and  how  long 

has  he,  to  your  knowledge,  been  a  resident  of  Newport? 

2 


10 


Ans.  I  first  became  acquainted  with  him  in  the  year 

1850.  I  cannot  tell  how  long  he  has  been  a  resident  of 
Newport. 

2.  At  what  time  of  the  year  are  taxes  assessed  upon  the 
inhabitants  of  Newport  ? 

Ans.  In  August  of  each  year. 

3.  At  what  time  is  the  residence  of  individuals  fixed  to 
render  them  liable  to  be  taxed,  and  at  what  time  is  their  res¬ 
idence  taken  for  the  purpose  of  assessing  them  ? 

Ans.  Whenever  the  assessors  of  taxes  ascertain  that  a 
person  has  become  a  resident  of  the  town.  There  is  no  par¬ 
ticular  time,  except  that  the  person  resides  here,  previous  to 
the  tax  being  ordered. 

4.  If  you  answer  to  the  4th  interrogatory  that  the  plaintiff 
did  pay  a  tax  in  Newport,  either  in  1850  or  1851,  or  during 
both  of  these  years,  please  annex  copies  of  his  tax  bills  to 
your  answers.  If  you  have  not  his  tax  bills  or  copies,  please 
annex  extracts  from  your  tax  books,  showing  the  amount  of 
personal  property  for  which  he  was  taxed  in  Newport  in  any 
capacity,  and  the  amount  of  taxes  he  paid  therefor. 

Ans.  I  can  only  say  that  he  was  taxed  on  ten  thousand 
dollars  for  the  year  1850,  and  thirty  thousand  for  the  year 

1851.  The  tax  collectors  collect  the  taxes,  give  receipts, 
and  keep  the  books. 

5.  State  the  number  of  years  the  plaintiff  has  been  taxed 
in  Newport,  the  amount  for  which  he  has  been  taxed  in  each 
year,  and  the  amount  of  taxes  he  has  paid  in  each  year. 

Ans.  Mr.  Bourne  has  been  taxed  three  years  in  this  town  ; 
on  ten  thousand,  personal  property  in  1S50  ;  on  thirty  thou¬ 
sand,  personal  property  in  1851  ;  on  thirty  thousand,  person¬ 
al  property  in  1852.  The  tax  book  shows  that  he  paid 
thirty-two  dollars  for  1S50,  eighty-seven  dollars  for  1851,  and 
one  hundred  and  twenty-three  dollars  for  1852 — the  rate 
of  taxes  having  been  increased. 

Additional  direct  interrogatory  by  the  plaintiff. 

5.  Whether  or  not  did  you  receive  a  notice,  of  which  the 
annexed  is  a  copy,  and,  if  so,  when  ? 


11 


(Copy.) 

Newport.  April  30th,  1850. 


Gentlemen, — 

This  is  to  give  you  notice  that  I  have  become  an  inhab¬ 
itant  of  Rhode  Island,  and  a  citizen  of  Newport,  and  that  it 
is  my  intention  to  make  this  my  permanent  residence,  and  it 
is  my  wish  to  pay  my  tax  here  upon  my  personal  property. 
I  occupy  a  small  house  on  Kay  street.  Hoping  and  trusting 
you  will  exercise  your  power  with  clemency  and  moderation, 
I  am,  with  great  respect, 

Your  obedient  servant, 

E.  A.  BOURNE. 


To  the  Assessors  of  the  town  of  Newport. 


Ans.  He  says  that  he  received  such  a  notice,  and  believes 
it  was  about  the  time  of  the  date. 


DEPOSITION  OF  OLIVER  READ. 

Interrogatories  by  the  plaintiffs  counsel. 

1.  What  town  office  did  you  hold  in  the  year  1S50  ? 
what  in  the  year  1851  ? 

Ans.  I  was  collector  of  taxes  for  the  year  1850.  .  I  held 
no  office  in  the  year  1851.  except  one  of  the  investing  com¬ 
mittee  of  the  school  fund. 

2.  Do  you  know  the  plaintiff  in  this  suit,  Mr.  Ezra  A. 
Bourne  ? 

Ans.  I  know  the  said  Ezra  A.  Bourne.  I  called  at  his 
house  when  collecting  taxes  ;  and  Mr.  Bourne  afterwards 
came  to  my  office,  and  paid  me  his  taxes,  himself. 

3.  Whether  or  not  was  the  said  Bourne  an  inhabitant  of 
the  town  of  Newport  during  the  years  1850  and  1851,  or 
either  of  them  ? 

Ans.  I  should  think  he  was. 

4.  Whether  or  not  was  any  tax  assessed  upon  him,  as 
upon  personal  property  or  his  poll,  during  said  years,  or  either 
of  them  ;  and  if  yea,  did  he  or  not  pay  the  same  ? 

Ans.  In  the  year  1850  there  was  a  tax  of  ten  thousand 


12 


dollars  assessed  on  his  personal  property,  amounting  to  the 
sum  of  thirty-three  dollars;  which  Mr.  Bourne  paid  to  me  on 
my  receipt  to  him  for  the  same. 

Cross  Interrogatories  by  the  defendants'  counsel. 

1.  How  long  have  you  known  the  plaintiff,  and  how  long 
has  he,  to  your  knowledge,  been  a  resident  of  Newport  ? 

Ans.  In  the  month  of  June  or  July,  1S50,  Mr.  Bourne 
was  first  pointed  out  to  me.  I  cannot  say  how  long  Mr. 
Bourne  has  resided  in  Newport,  but  I  believe  that  he  resided 
here  some  time  previously  to  June,  1850. 

2.  At  what  time  of  the  year  are  taxes  assessed  upon  the 
inhabitants  of  Newport  ? 

Ans.  The  taxes  are  voted  in  June,  and  assessed  in  August, 
of  each  year,  generally. 

3.  At  what  time  is  the  residence  of  individuals  fixed  to 
render  them  liable  to  be  taxed  ;  and  at  what  time  is  their  res¬ 
idence  taken  for  the  purpose  of  assessing  them. 

Ans.  Whenever  a  person  gives  notice  to  the  proper 
authorities  of  his  intention  to  become  a  citizen  of  this  town. 

4.  If  you  answer  to  the  4th  interrogatory  that  the  plaintiff 
did  pay  a  tax  in  Newport,  either  in  1S50  or  1851,  or  during 
both  of  those  years,  please  annex  copies  of  his  tax  bills  to 
your  answers.  If  you  have  not  his  tax  bills,  or  copies,  please 
annex  extracts  from  your  tax  books,  showing  the  amount  of 
personal  property  for  which  he  was  taxed  in  Newport  in  any 
capacity,  and  the  amount  of  taxes  he  paid  therefor. 

Ans.  I  have  no  copy  of  the  receipt  of  taxes  paid  by  Mr. 
Bourne.  The  following  is  a  correct  transcript  from  the  tax 
book  of  1S50  : — 


Real. 

Personal. 

Paid. 

Bourne,  E.  A. 

SI  0,000 

$33.00. 

The  rate  being  thirty-three  cents  on  a  hundred  dollars. 


13 


5.  State  the  number  of  years  the  plaintiff  has  been  taxed 
in  Newport,  the  amount  for  which  he  has  been  taxed  in  each 
year,  and  the  amount  of  taxes  he  has  paid  in  each  year. 

Ans.  I  cannot  say,  as  I  have  not  had  the  charge  of  the 
tax  books  since  1850,  and  can  only  say  that  he  was  taxed 
for  that  year,  and  was  not  taxed  the  two  years  previous. 
The  sum  paid  in  1850  was  thirty-three  dollars. 

Additional  interrogatory  by  the  plaintiff. 

(The  same  as  in  Mr.  Hammett’s  deposition.) 

Ans.  He  saith  that  he  knows  nothing  of  the  notice. 

DEPOSITION  OF  JAMES  HORSWELL. 

Interrogatories  by  the  plaintiff  s  counsel. 

1.  What  town  office  did  you  hold  in  the  year  1850  ? 
What  in  the  year  1851  ? 

Ans.  I  held  no  office  in  1850.  I  was  collector  of  the 
town  taxes  in  1851. 

2.  Do  you  know  the  plaintiff  in  this  suit,  Mr.  E.  A. 
Bourne  ? 

A7is.  He  says  that  he  does. 

3.  Whether  or  not  was  the  said  Bourne  an  inhabitant  of 
the  town  of  Newport  during  the  years  1850  and  1851,  or 
either  of  them  ? 

Ans.  I  considered  him  such,  because  he  was  assessed  at 
his  request. 

4.  Whether  or  not  was  any  tax  assessed  upon  him,  as 
upon  personal  property  or  his  poll,  during  the  said  years  or 
either  of  them,  and  if  yea,  did  he  or  not  pay  the  same  ? 

Ans.  In  the  year  1851  he  was  assessed  a  personal  property 
tax  on  thirty  thousand  dollars,  and  paid  me  eighty-seven 
dollars  tax. 

Cross  Interrogatories  by  the  defendants'  counsel. 

1.  How  long  have  you  known  the  plaintiff,  and  how 
long  has  he  to  your  knowledge  been  a  resident  of  Newport  ? 


14 


Ans.  I  have  known  him  about  two  years,  and  believe 
that  he  has  been  a  resident  for  that  length  of  time. 

2.  At  what  time  of  the  year  are  taxes  assessed  upon  the 
inhabitants  of  Newport  ? 

Ans.  The  taxes  are  voted  in  June,  and  assessed  in  August. 

3.  At  what  time  is  the  residence  of  individuals  fixed  to 
render  them  liable  to  be  taxed,  and  at  what  time  is  their  resi¬ 
dence  taken  for  the  purpose  of  assessing  them  ? 

Ans.  Whenever  the  assessors  of  taxes  ascertain  that  a 
stranger  has  become  a  resident  of  the  town.  I  know  of  no 
particular  length  of  time  necessary  for  a  person  to  claim  his 
residence  here  before  being  taxed.  If  he  came  here  in 
September,  he  would  not  however  be  assessed  and  taxed  un¬ 
til  the  following  year. 

4.  If  you  answer  to  the  4th  interrogatory  that  the  plaintiff 
did  pay  a  tax  in  Newport  either  in  1850  or  1S51,  or  during  both 
of  those  years,  please  annex  copies  of  his  tax  bills  to  your 
answers.  If  you  have  not  his  tax  bills  or  copies,  please  annex 
extracts  from  your  tax  books,  showing  the  amount  of  personal 
property  for  which  he  was  taxed  in  Newport  in  any  capacity, 
and  the  amount  of  taxes  he  paid  therefor  ? 

Ans.  I  keep  no  copies  of  tax  receipts  or  tax  bills.  The 
amount  is  set  down  in  a  tax  book,  and  is  marked  as  follows  : 


Beal. 

Personal. 

Paid. 

Bourne  E.  A. 

$30,000. 

SS7  00. 

<( 

This  shows  that  Mr.  Bourne  was  taxed  eighty  seven  dollars 
on  thirty  thousand  dollars  of  personal  property,  and  that  he 
had  no  real  estate  in  this  town. 

5.  State  the  number  of  years  the  plaintiff  has  been  taxed 
in  Newport,  the  amount  for  which  he  has  been  taxed  in  each 
year,  and  the  amount  of  taxes  he  has  paid  in  each  year. 

Ans.  I  cannot  say  except  as  regards  the  year  1851,  when 
I  was  collector  of  taxes.  Mr.  Bourne  paid  in  that  year 


15 


eighty  seven  dollars  tax,  assessed  on  him  for  thirty  thousand 
dollars  of  personal  property. 

Additional  interrogatory  by  the  plaintiff. 

(The  same  as  in  Mr.  Hammett’s  deposition.) 

Ans.  I  have  no  knowledge  of  that  notice. 

DEPOSITION  OF  BENJAMIN  B.  HOWLAND. 

Interrogatories  by  the  plaintiff. 

1.  What  town  office  did  you  hold  in  the  year  1850  ? 
What  in  the  year  1851  ? 

Ans.  I  was  town  clerk  in  the  years  1850  and  1851. 

2.  Do  you  know  the  plaintiff  in  this  suit,  Mr.  Ezra  A. 
Bourne  ? 

Ans.  I  am  not  personally  acquainted  with  him  to  my 
knowledge. 

3.  Whether  or  not  was  the  said  Bourne  an  inhabitant  of 
the  town  of  Newport  during  the  years  1850  and  1851,  or 
either  of  them  ? 

Ans.  I  suppose  that  he  was,  because  he  was  taxed  on  per¬ 
sonal  property  in  the  years  1850  and  1851. 

4.  Whether  or  not  was  any  tax  assessed  upon  him,  as 
upon  personal  property  or  his  poll,  during  said  years  or  either 
of  them,  and  if  yea,  did  he  or  not  pay  the  same  ? 

Ans.  There  was  a  personal  property  tax  assessed  on  him 
in  both  of  the  said  years,  and  the  returns  made  by  the  tax  col¬ 
lectors  on  the  books  in  my  office,  show  that  he  paid  the  tax 
assessed  on  him  for  the  year  1851. 

Cross  interrogatories  by  the  defendants ’  counsel. 

1.  How  long  have  you  known  the  plaintiff,  and  how  long 
has  he  to  your  knowledge  been  a  resident  of  Newport  ? 

Ans.  I  do  not  know  the  plaintiff,  and  have  no  means  of 
ascertaining  his  residence  except  from  the  record. 

2.  At  what  time  of  the  year  are  taxes  assessed  upon  the 
inhabitants  of  Newport  ? 

Ans.  Generally  in  August. 

3.  At  what  time  is  the  residence  of  individuals  fixed  to 


16 


render  them  liable  to  be  taxed,  and  at  what  time  is  their  resi¬ 
dence  taken  for  the  purpose  of  assessing  them  ? 

Ans.  Whenever  the  assessors  of  taxes  suppose  that  a 
person  has  made  this  place  his  residence. 

4.  If  you  answer  to  the  4th  interrogatory  that  the  plaintiff 
did  pay  a  tax  in  Newport,  either  in  1850  or  1851,  or  during 
both  of  those  years,  please  annex  copies  of  his  tax  hills  to 
your  answers.  If  you  have  not  his  tax  bills  or  copies,  please 
annex  extracts  from  your  tax  books,  showing  the  amount  of 
personal  property  for  which  he  was  taxed  in  Newport  in  any 
capacity,  and  the  amount  of  taxes  he  paid  therefor. 

Ans.  The  following  are  copies  from  the  tax  books  of 
1850  and  1851 : 


1850. 

Real. 

Personal. 

Bourne  E.  A. 

$10,000. 

$33  00. 

1851. 

Real. 

Personal. 

Bourne  E.  A  ("in  Eng’s  house,) 

$30,000. 

$87.00. 

Mr.  Bourne  was  taxed  thirty  three  dollars  on  ten  thousand 
dollars  in  1850,  and  eighty  seven  dollars  on  thirty  thousand 
dollars  in  1851. 

5.  State  the  number  of  years  the  plaintiff  has  been  taxed 
in  Newport,  the  amount  for  which  he  has  been  taxed  in  each 
year,  and  the  amount  of  taxes  he  has  paid  in  each  year  ? 

Ans.  Mr.  Bourne  has  been  taxed  three  years.  In  the 
year  1850  he  was  taxed  thirty  three  dollars  on  ten  thousand 
dollars  of  personal  property.  In  the  year  1S51  he  was  taxed 
eighty  seven  dollars  on  thirty  thousand  dollars  personal  prop¬ 
erty,  and  in  1S52  he  was  taxed  one  hundred  and  twenty  three 
dollars  on  thirty  thousand  dollars  personal  property. 


17 


Additional  interrogatory  by  the  plaintiff. 

(The  same  as  in  Mr.  Hammett’s  deposition.) 

Ans.  I  have  no  recollection  of  ever  receiving  any  such 
notice. 

Mr.  Welch  then  put  in  a  lease  from  Mrs.  Engs  to  Ezra  A. 
Bourne.  This  lease  had  no  date,  except  of  the  year  1849. 
It  was  acknowledged  the  24th  of  April,  1849.  It  was  a  lease 
of  a  dwelling  house  on  Kay  street,  in  Newport,  R.  I.,  for  four 
years  from  June  1,  1849,  at  the  rent4of  $200  a  year,  payable 
quarterly;  the  firs't  payment  to  be  made  on  September  1st, 
1849. 

He  also  put  in  the  following  depositions  : 

DEPOSITION  OP  MRS.  ELIZABETH  F.  RICE, 

OF  BALTIMORE,  MD. 

Questions  by  the  plaintiff's  counsel. 

1.  How  are  you  related  or  connected  with  the  plaintiff  in 
this  suit  ? 

Ans.  He  is  my  stepfather. 

2.  Whether  or  not  were  you  in  Boston  in  a  part  of  the 
spring  and  summer  of  1851  ?  If  yea  when  did  you  come,  for 
what  purpose,  at  what  house  did  you  stay,  when  did  you 
leave,  and  for  what  place  ? 

Ans.  I  was  in  Boston  during  a  part  of  the  spring  and 
summer  of  1851.  I  came  on  in  April,  the  last  of  April,  to  be 
confined.  I  staid  at  my  mother’s  house,  No.  19  Pemberton 
Square.  I  left  in  July  of  the  same  year  for  Newport. 

3.  What  was  your  object  in  being  confined  in  Boston? 

Ans.  It  was  so  as  to  be  under  the  care  of  Dr.  Warren.  I 

preferred  him  because  he  had  always  been  my  family  physi¬ 
cian,  and  understood  my  constitution. 

4.  W'hether  or  not  was  the  plaintiff  in  Boston  on  the  first 
of  May,  1851,  to  your  knowledge  ?  and  state  anything  which 
you  know  in  relation  to  his  movements,  and  of  any  of  his 
family,  immediately  previous  to  1st  of  May. 

Ans.  He  was  not  to  my  knowledge.  He  was  here  in 


3 


18 


Boston  when  I  came  on  ;  and  the  last  of  April  he  left  here  for 
Newport.  Mrs.  Bourne,  my  mother,  went  to  Newport  with 
Mr.  Bourne  the  last  of  April. 

5.  When  did  you  again  see  your  mother,  after  she  left  in 
April  ? 

Ans.  I  know  that  I  saw  her  in  June,  but  don’t  remember 
whether  I  saw  her  before  that. 

6.  How  do  you  fix  the  time  of  your  seeing  her  as  in 
June  ?  Was  it  or  not  by  her  being  present  when  you  was 
confined  ? 

Ans.  It  was  by  her  being  present  when  I  was  confined. 

7.  When  did  you  again  see  Mr.  Bourne  after  he  left  in 
April,  and  at  what  time  ?  was  it  or  not  when  your  child  was 
born  ? 

Ans.  It  was  in  June,  just  before  the  birth  of  my  child. 

8.  When  you  went  to  Newport  after  the  birth  of  your 
child,  to  whose  house  did  you  go  ? 

Ans.  To  my  mother’s  house. 

9.  State  the  street  and  number  if  you  know  it,  and  who 
lived  there  besides  your  mother. 

Ahs.  Kay  street.  I  don’t  know  that  it  had  a  number.  It 
was  next  the  Jewish  burying  ground.  Mr.  Bourne  and  my 
two  sisters  lived  there  besides  my  mother. 

10.  Had  you  any  of  your  own  servants  with  you  while 
you  were  in  Pemberton  Square,  Boston  ? 

Ans.  I  brought  one  with  me,  and  had  another  one  after  I 
came. 

Cross  interrogatories  proposed  on  behalf  of  the  City  of 

Boston. 

1.  When  Mr.  and  Mrs.  Bourne  went  to  Newport  the  last 
of  April,  as  you  have  stated  in  your  answer  to  the  4th  ques¬ 
tion,  did  the  house  in  Pemberton  Square  remain  open  as 
usual  ? 

Ans.  Yes. 

2.  When  did  Mr.  Bourne  or  your  mother,  or  either  of 
them,  return  to  the  house  after  their  return  in  June  ? 

Ans.  I  don’t  know.  They  came  up  in  the  course  of  the 
summer  for  a  day  or  so  ;  the  time  I  don’t  know. 


19 


3.  When  did  you  next  see  Mr.  Bourne  after  he  left  for 
Newport  as  you  have  stated  ?  Can  you  fix  the  day  or  week  ? 
Are  you  confident  it  was  not  in  May  ? 

Ans.  I  saw  him  in  June.  I  don’t  remember  whether  I 
saw  him  before  June.  I  can’t  fix  the  day  or  week.  I  am 
not  confident  it  was  not  in  May. 

4.  When  Mr.  Bourne  was  in  Boston  in  the  summer  of 
1851,  did  he  live  in  the  house  in  Pemberton  Square? 

Ans.  He  stopped  at  the  house. 

5.  Plow  long  did  your  mother  remain  in  the  house  when 
she  returned  in  June?  Was  Mr.  Bourne  here  as  long  as  she 
was  ? 

Ans.  She  remained  several  weeks.  Mr.  Bourne  was  not 
here  so  long.  He  was  here  only  for  a  few  days. 

6.  When  did  you  leave  Boston  for  Newport,  and  how 
long  did  you  remain  there  ?  Was  not  the  house  in  Pember¬ 
ton  Square  left  open  as  usual  in  the  care  of  servants? 

Ans.  I  left  in  July,  the  first  part  of  July.  I  staid  at  New¬ 
port  till  the  middle  or  last  of  September.  The  birth  of  my 
child  was  on  the  18th  of  June.  I  returned  from  Newport  to 
Boston  with  Mr.  and  Mrs.  Bourne,  and  remained  a  week  or 
so,  and  then  left  for  New  York.  I  am  not  certain  that  Mr. 
Bourne  returned  from  Newport  with  us  in  September.  The 
house  was  left  open  as  usual  in  the  care  of  servants.  Mr.  and 
Mrs.  Bourne  joined  me  at  New  York,  and  we  went  South 
together. 

7.  Did  Mrs.  Bourne  return  to  Newport  after  she  came  to 
Boston  in  September  ? 

Ans.  She  did  not. 

8.  Did  not  Mr.  and  Mrs.  Bourne  reside  in  the  house  in 
Pemberton  Square  during  the  winter  of  1851-2?  Did  you 
reside  with  them,  and  have  you  resided  with  them  since  ? 

Ans.  They  did  reside  there  that  winter.  I  made  a  visit 
that  winter  in  December  of  perhaps  about  ten  days.  I  have 
not  been  here  since  until  my  present  visit. 

9.  How  long  have  Mr.  and  Mrs.  Bourne  resided  in  the 
house  in  Pemberton  Square  ? 

Ans.  I  can’t  tell  how  many  years  ;  about  eleven  years  I 
should  think. 


20 


10.  Has  it  been  for  that  length  of  time  the  family  resi¬ 
dence  in  Boston  ? 

Ans.  When  they  have  been  in  Boston  they  have  always 
lived  in  this  house. 

11.  Have  they  during  that  length  of  time  passed  most  of 
their  time  in  Boston  ? 

Ans.  I  don’t  think  they  have.  I  should  think  more  than 
half  their  time  has  been  passed  away  from  Boston. 

12.  Where  have  they  passed  most  of  their  time,  if  not  in 
Boston  ? 

Ans.  I  should  say  in  Brookline,  Newport,  and  Maryland. 

13.  What  years  in  Brookline  ?  what  in  Newport  ?  what 
in  Maryland  ?  Had  they  any  residence  in  Brookline  or 
Maryland,  or  were  they  merely  visiting  in  the  last  named 
places  ? 

Ans.  Four  or  five  years  in  Newport,  as  near  as  I  can  re¬ 
collect.  They  have  made  a  visit  to  Maryland  during  the 
spring  and  fall  of  every  year.  The  two  years  previous  to 
going  to  Newport  they  went  to  Brookline.  They  had  a  resi¬ 
dence  both  in  Brookline  and  Maryland. 

14.  Have  they  spent  every  winter  in  Boston  ?  Can  you 
state  the  months  when  they  usually  resided  in  Brookline, 
Maryland,  and  Newport  ? 

A?ts.  I  believe  they  have  spent  every  winter  in  Boston. 
They  went  to  Brookline,  I  think,  in  April  of  each  year,  and 
remained  there  until  they  went  to  the  South  in  the  fall.  I 
can’t  tell  exactly  the  months  they  resided  in  Maryland. 
They  left  here  for  Newport  always  in  April,  and  remained 
until  their  return  to  Boston  or  going  to  the  South. 

15.  Did  they  go  to  Brookline  or  Maryland  in  the  year 
1851? 

Ans.  They  went  to  Maryland  sometime  in  May,  and 
about  October  in  the  fall. 

Further  direct  interrogatories  proposed  by  the  plaintiff. 

1.  Do  you  recollect  seeing  Mr.  Bourne  at  any  time  after 
he  left  for  Newport  in  April,  1851,  till  he  came  to  Boston 
shortly  before  your  confinement  ? 


21 


Ans.  I  don’t  think  I  did,  but  I  can’t  say  certainly. 

2.  You  have  stated  that  in  the  fall  of  1851  Mr.  and  Mrs. 
Bourne  spent  some  time  in  Maryland  ;  when  they  left  Mary¬ 
land  that  year,  do  you  know  whether  they  went  to  Boston  or 
Newport  ? 

Ans.  I  don’t  know  of  my  own  knowledge. 

Ezra  A.  Bourne,  } 

v.  >  Norfolk  Supreme  Judicial  Court. 

The  City  of  Boston.  ) 

It  is  agreed  that  the  deposition  of  Elizabeth  F.  Rice  be 
taken  on  behalf  of  the  plaintiff  in  the  above  action  by  A.  S. 
Wheeler,  at  No.  19  Pemberton  Square,  this  day.  The  same 
to  remain  open  off  the  files  for  the  use  of  either  party. 

December  30th,  1852. 

(Signed)  Sohier  &  Welch  for  Plaintiff. 

P.  W.  Chandler  for  Defeyidants. 

DEPOSITION  OF  JAMES  HAMMOND, 

OF  NEWPORT,  R.  I. 

Interrogatories  by  the  plaintiff , s  counsel. 

1.  Do  you  know  the  plaintiff  in  this  suit,  Mr.  Ezra  A. 
Bourne  ?  and  how  long  have  you  known  him  ? 

Ans.  I  know  him  ;  and  think  I  have  known  him  for  two 
years  or  more. 

2.  Whether  or  not  was  the  said  plaintiff  residing  in  New¬ 
port  on  the  first  day  of  May,  1851?  and  if  yea,  state  how  you 
know  the  fact  of  his  residence.  How  do  you  remember  the 
same  ? 

Ans.  He  was  residing  in  Newport  on  that  day.  I  know 
that  he  was  residing  in  Newport,  because  I  received  a  call 
from  him  on  that  day. 

3.  At  what  hour  or  hours,  and  in  what  place  or  places, 
did  you  see  the  plaintiff  on  that  day  ? 


22 


Ans.  I  saw  him  in  my  counting  room  and  in  my  store ; 
and  I  believe  it  was  in  the  morning,  somewhere  about  noon. 

4.  Where  did  the  plaintiff  live  ?  in  what  street  ?  and  did 
he  occupy  a  house,  or  did  he  board  ? 

Ans.  The  plaintiff  lived  in  Kay  street,  in  this  town,  and 
occupied  the  house.  He  kept  house,  I  know. 

Cross  interrogatories  by  the  defendants'  counsel. 

1.  Do  you  know  the  family  of  the  plaintiff?  Of  how 
many  persons  does  it  consist,  and  what  are  their  names  ? 

Hus.  I  know  the  family  of  the  plaintiff  personally.  I  do 
not  know  their  names,  nor  how  many  it  consists  of ;  it  varies 
at  different  times.  He  has  a  coachman,  and  other  servants. 

2.  Whether  or  not  did  you  see  any  member  of  the  plain¬ 
tiff'  ’s  family  in  Newport,  on  the  first  day  of  May,  A.  D.  1851  ? 
if  yea,  whom  did  you  see,  and  where,  and  for  how  long  a 
time  did  you  see  them  ? 

Ans.  I  saw  Mr.  Bourne  in  Newport  on  that  day,  and  I 
believe  one  other  member  of  his  family.  I  saw  Mr.  Bourne 
in  the  street,  and  at  my  store.  I  saw  the  other  member  of 
his  family,  I  think,  in  the  street  and  at  my  store.  I  don’t 
now  recollect  whether  it  was  Mrs.  Bourne  or  one  of  the 
daughters.  They  paid  me  a  pretty  long  visit  at  my  store. 

3.  For  how  long  a  time  had  the  plaintiff  been  in  New¬ 
port  on  the  first  day  of  iMay,  1851?  State  in  detail  how 
often  you  had  seen  him  in  Newport  before  that  day,  and  at 
what  times,  and  in  what  places. 

Ans.  I  cannot  answer  that  question  precisely. 

4.  If  in  answer  to  the  2d  cross  interrogatory  you  say  that 
you  saw  none  of  the  plaintiff’s  family  on  said  first  day  of 
May  in  Newport,  state  whether  or  not  you  knew  where  the 
plaintiff’s  family  were  residing  at  that  time. 

Ans.  The  plaintiff’s  family  were  residing  at  Kay  street  ; 
they  always  lived  there. 

5.  If  you  had  any  conversation  with  the  plaintiff,  at  or 
about  the  time  above  named,  about  his  family,  or  their  resi¬ 
dence,  or  his  own  residence,  please  give  the  same,  according 
to  your  best  recollection. 


23 


Ans.  I  cannot  say  whether  our  conversation  related  to 
that  subject  or  not  ;  knowing  that  he  resided  here  in  Kay 
street,  I  did  not  question  him  as  to  that. 

Additional  interrogatory  by  the  plaintiff's  counsel. 

5.  Whether  or  not  did  you  see  the  plaintiff  after  the  first 
of  May,  1851,  in  Newport.  If  yea,  how  often,  and  generally 
in  what  place  or  places  ?  and  for  how  long,  as  far  as  you  can 
recollect,  did  you  continue  to  see  him  at  times? 

Ans.  1  saw  him  at  various  times  ;  how  often  I  cannot 
say,  but  very  often.  The  places  where  I  have  seen  him  are 
either  in  the  street  or  at  my  store.  Mr.  Bourne  very  fre¬ 
quently  calls  at  my  store,  and  also  his  family.  I  saw  him 
and  his  family  at  different  times,  very  often  during  the  sea¬ 
son,  and  late  in  the  season. 

DEPOSITION  OF  MRS.  ADELINE  TIRRELL. 

OF  NEWPORT,  R.  I. 

Interrogatories  by  the  plaintiff's  counsel. 

1.  Where  did  you  reside  on  the  first  of  May,  eighteen 
hundred  and  fifty,  and  the  first  of  May,  eighteen  hundred 
and  fifty-two  ? 

Ans.  I  resided  in  Newport,  in  the  State  of  Rhode  Island. 

2.  Do  you  know  the  plaintiff  in  this  suit,  and  how  long 
have  you  known  him  ? 

Ans.  I  know  him,  and  have  been  acquainted  with  him 
eight  or  nine  years. 

3.  Whether  or  not  was  the  plaintiff  residing  in  New¬ 
port  on  the  first  day  of  May,  eighteen  hundred  and  fifty-one  ; 
and  if  yea,  whether  with  or  without  his  family  ?  and  state 
how  you  know  the  fact  of  his  residence. 

Ans.  Mr.  Bourne,  the  plaintiff,  was  residing  in  Newport 
on  that  day  ;  his  wife  was  with  him.  I  know  that  fact,  be¬ 
cause  myself  and  daughter  dined  with  him  on  that  day  at  his 
house.  I  recollect  it  because  it  was  May-day. 

4.  At  what  time  or  times,  and  in  what  place  or  places, 
did  you  see  the  plaintiff  on  that  day  ? 


24 


Ans.  I  only  recollect  seeing  him  at  dinner,  and  at  his 
house. 

5.  Where  did  the  plaintiff  live  ?  in  what  street  ?  did  he 
occupy  a  house,  or  did  he  board  ?  and  how  near  did  you  live, 
and  how  intimate,  or  otherwise,  were  you  with  him  and  his 
family  ? 

Ans.  He  lived  at  his  house  in  Kay  street.  He  occupied 
his  own  house.  I  lived  on  Man  avenue,  the  second  house 
from  the  corner  of  Kay  street.  Mr.  Bourne  lived  in  the 
house  next  the  Jews’  burying  ground.  We  were  intimate  • 
Mr.  Bourne  is  my  brother-in-law. 

6.  How  long  did  the  plaintiff  remain  in  Newport  in  said 
year  of  eighteen  hundred  and  fifty-one  ? 

Ans.  He  spent  the  summer  here.  I  do  not  know  how 
much  longer  he  stayed.  He  went  from  here  some  time  in 
the  fall. 

7.  Whether  or  not  was  the  plaintiff  residing  in  Newport 
on  the  first  day  of  May,  eighteen  hundred  and  fifty  ?  and 
state  whether  with  or  without  his  family. 

Ans.  Mr.  Bourne  was  residing  in  Newport  on  the  first 
of  May,  1850,  with  his  family.  I  stayed  at  that  time  in  his 
house  a  few  days,  while  my  house  was  being  prepared  for 
me. 

8.  Where  did  the  plaintiff  live  in  eighteen  hundred  and 
fifty,  on  the  1st  day  of  May?  in  what  street?  did  he  board, 
or  occupy  a  house  with  his  family  ?  and  if  the  latter,  was  it 
the  same  house  he  occupied  in  May,  eighteen  hundred  and 
fifty-one  ;  and  does  he  or  not  occupy  said  house  now  ? 

^4ns.  He  was  living  in  Newport  on  that  day,  in  his  own 
house  ;  his  family  was  with  him.  He  occupied  then  the 
same  house  that  he  does  now. 

9.  Do  you  know  the  distance  between  Boston  and  New¬ 
port  ?  and  if  yea,  state  the  same. 

Ans.  I  believe  it  is  about  seventy  miles,  but  am  not  sure. 

10.  Do  you  or  not  know  what  were  the  public  modes  of 
conveyance  between  Boston  and  Newport  on  the  first  day  of 
May,  eighteen  hundred  and  fifty-one  ?  and  if  yea,  state  the 
time  or  times  of  starting  from  Newport  to  Boston  after  three 


25 


o'clock,  P.  M.,  on  that  day,  of  each  of  said  public  modes  of 
conveyance. 

Ans.  I  believe  they  were  pretty  much  the  same  as  they 
are  now, — railroad  and  steamboat.  I  have  not  the  least  re¬ 
collection  of  their  hours  of  starting. 

Cross  interrogatories  by  the  defendants ’  counsel. 

1.  Whether  or  not  are  you  related  to  the  plaintiff  in  this 
action  ?  If  yea,  what  is  your  relation  to  him,  and  where 
have  you  resided  for  the  last  five  years  ? 

Ans.  I  am  connected  by  marriage.  He  is  my  brother-in- 
law.  I  resided  the  first  part  of  that  time  in  Alabama,  then 
one  summer  in  Virginia,  and  then  removed  to  Newport, 
Rhode  Island,  where  I  now  reside. 

2.  Of  how  many  persons  did  the  family  of  the  plaintiff 
consist  on  the  first  day  of  May,  1851  ?  Give  their  names. 

Ans.  I  only  know  of  the  plaintiff  and  his  wife  ;  I  do  not 
know  of  their  family  arrangements. 

3.  Where  did  you  reside,  and  where  were  you  on  that 
day  ?  where  were  the  members  of  the  plaintiff’s  family  on 
that  day  ?  whom  of  them  did  you  see  on  said  first  day  of 
May,  1851,  and  where  did  you  see  them? 

Ans.  I  resided  in  Newport  in  my  own  house.  Mr.  and 
Mrs.  Bourne  were  in  Newport  at  their  own  house.  I  only  re¬ 
member  seeing  Mr.  and  Mrs.  Bourne,  and  at  their  own  house. 

4.  Where  did  the  family  of  the  plaintiff  reside  during  the 
months  of  November  and  December,  1850,  and  January,  Feb¬ 
ruary,  March,  and  April,  1851  ?  Did  you  see  the  plaintiff  or 
his  family  during  that  time?  If  yea,  when  and  how  often 
did  you  see  him  or  them? 

Ans.  I  do  not  know  ;  I  do  not  remember  of  seeing  them 
during  the  times  mentioned. 

5.  In  the  years  1850  and  1851,  how  many  servants,  or 
persons  in  the  capacity  of  servants,  did  the  plaintiff  have  in 
his  family  ? 

Ans.  I  do  not  know. 

6.  During  the  years  1850  and  1S51  did  the  plaintiff  and 
his  family  reside  in  the  same  or  different  towns  or  cities,  and 


4 


26 


in  the  same  or  different  houses  ?  If  he  changed  his  residence 
with  his  family  at  any  time  or  times,  during  those  years, 
state  the  towns  or  cities  from  and  to  which  he  removed  with 
his  family,  and  the  streets  and  numbers  of  the  houses  from 
and  to  which  he  moved.  State  also  the  times  of  these 
changes,  their  number,  and  dates. 

Arts.  They  have  lived  in  Newport,  in  the  same  house, 
ever  since  April,  1850  ;  how  much  longer  they  have  lived 
there  I  do  not  know.  I  came  with  them  from  Boston  in  the 
latter  part  of  April,  1850,  and  remained  at  their  house,  on  a 
visit,  a  short  time. 

7.  If  you  answer  to  the  last  interrogatory  that  the  plain¬ 
tiff  did  move  with  his  family,  in  whose  charge  and  keeping 
were  the  houses  or  house,  from  or  to  which  he  moved,  left  ? 
and  did  the  persons  having  the  charge  of  such  house  or  houses 
receive  compensation  for  their  services  from  the  plaintiff  or 
any  of  his  family  ? 

Ans.  I  know  nothing  about  it. 

Mr.  Welch  stated  that  it  was  admitted  that  Mr.  Bourne 
was  trustee  for  the  Misses  Thorndike,  and  guardian  for  the 
minor  Miss  Thorndike. 

Mr.  Chandler  then  opened  for  the  defendants. 

The  case,  he  said,  was  one  of  great  importance  in  more 
respects  than  one.  Important  as  involving  principles  affect¬ 
ing  the  rights  of  every  tax  payer,  but  more  especially  as 
relating  to  the  public  morals.  The  public  burthens  ought  to 
be  shared  equally  by  all  the  citizens  in  proportion  to  their 
property.  Equality  was  equity  ;  and  whenever  by  any  man¬ 
agement  one  man  was  able  to  avoid  his  just  portion  of  the 
expenditures  which  are  for  the  benefit  of  all,  an  injustice  was 
done  to  the  whole  body  politic.  A  man  has  a  right  to  live 
where  he  pleases.  He  may  change  his  domicil  whenever  he 
desires  to  do  so  ;  and  he  is  not  bound  to  assign  any  reason 
therefor.  But  such  change  must  be  actually  made,  and  it 
must  be  made  in  good  faith.  No  man  has  a  right  to  have  an 


27 


actual  domicil  in  one  place,  and  a  pretended  or  fictitious 
domicil  in  another  place.  He  cannot  reside  in,  and  have  the 
benefits  of,  one  town,  and  elect  to  pay  his  taxes  in  another 
town,  because  they  are  less  than  in  the  town  where  he  ac¬ 
tually  lives. 

Nor  had  one  city  or  town  the  least  right  to  complain  be¬ 
cause  any  citizen  chooses  to  remove  therefrom,  and  that 
because  his  municipal  burthens  would  be  less  in  his  new  resi¬ 
dence.  But  any  evasion  of  law,  any  pretended  removal,  any 
attempt  by  a  citizen  to  enjoy  the  advantages  of  one  place, 
and  not  to  share  with  others  in  his  just  proportion  of  the  ex¬ 
penses  of  that  place,  was  abhorrent  to  every  honorable  mind. 

The  plaintiff  had  been  taxed  in  Boston  in  1851,  on  the 
ground  that  he  was  a  citizen  there  on  the  first  day  of  May  in 
that  year.  He  had  paid  the  tax  under  protest,  and  now 
sought  to  recover  it  back  on  the  ground  that  he  was  not  a 
citizen  of  Boston  on  that  day.  On  this  point  the  defendants 
took  issue  ;  they  contend  that  the  plaintiff  did  have  his  legal 
domicil  in  Boston  on  that  day,  and  that  he  was  legally  tax¬ 
able  there  for  1851. 

Mr.  Chandler  then  proceeded  to  state  the  legal  definition 
of  domicil,  and  cited  and  commented  upon  various  decisions 
upon  the  question  of  domicil,  and  contended  that  if  the 
plaintiff,  having  his  home  in  Boston,  made  annual  visits  to 
Newport,  but  with  the  intention  when  he  left  Boston  in  the 
spring  to  return  in  the  autumn,  this  was  not  a  change  of 
domicil  for  the  purposes  of  taxation.  Still  less  was  it  so,  if 
his  going  to  Newport  before  May  1st  was  not  with  the  bona 
fide  intention  of  changing  his  home,  but  was  fraudulent  and 
for  the  purpose  of  avoiding  his  share  of  municipal  burthens 
in  Boston.  It  would  be  safe  to  admit  all  that  was  alleged  by 
the  plaintiff’s  counsel,  and  all  that  he  attempted  to  prove. 
Suppose  the  plaintiff  was  in  Newport  on  May  1st.  If  he  in¬ 
tended  to  return,  if  he  did  not  intend  to  make  Newport  his 
permanent  home,  it  was  of  no  consequence  where  he  was  on 
that  day. 

Where  was  the  home  of  the  plaintiff  in  1851  ?  This  was 
the  question,  and  upon  this  point  he  (Mr.  C.)  should  offer 


28 


such  conclusive  testimony  as  would  save  the  jury  much 
trouble  in  coming  to  a  decision. 

Ezra  A.  Bourne,  the  plaintifF,  a  gentleman  of  considerable 
wealth,  retired  from  active  business  several  years  ago,  having 
been  president  of  the  State  Bank  for  about  twenty  years.  A 
few  years  since,  he  married  the  widow  of  Charles  Thorn¬ 
dike,  a  lady  of  large  wealth.  He  subsequently  became  trus¬ 
tee  of  her  property,  and  trustee  for  several  of  her  children, 
and  guardian  of  others.  Prior  to  1848,  and  for  a  long  series 
of  years,  the  family  had  resided  in  a  mansion,  suitable  to 
their  condition,  in  Pt  mberton  Square,  and  Mr.  Bourne  had 
been  a  tax  payer  in  the  city  of  Boston.  In  1848  and  in  1849, 
he  went  to  Brookline  with  his  family,  and  gave  notice  to  the 
Boston  assessors  that  he  had  taken  up  his  permanent  residence 
there.  He  was  taxed  there  in  those  years.  He  spent  the 
winters  in  Boston,  and  in  the  spring  of  1850,  having  hired 
domestics  to  keep  the  house  in  Boston  open  for  the  use  of  the 
family,  when  they  desired  to  use  it  in  the  course  of  the 
summer,  he  undertook  to  go  out  of  the  state  and  to  gain  a 
domicil  in  Newport ;  and  this,  as  the  defendants  would  show, 
not  bona  fide ,  but  with  the  intention,  and  solely  for  the  pur¬ 
pose,  of  not  being  taxed  in  Boston.  He  gave  notice  to  the 
Boston  assessors  that  he  should  be  at  his  home  out  of  the 
city,  and  he  was  not  taxed  in  Boston.  In  1851,  the  plaintifF 
undertook  a  more  hazardous  experiment.  He  then  undertook 
not  only  to  keep  his  house  open  in  Boston  for  use  and  occu¬ 
pation  when  necessary,  and  to  pay  no  taxes  there,  but  as  the 
circumstances  of  a  part  of  his  family  or  relations  render  it 
convenient,  he  thought  he  might  venture  to  let  all  his  family 
remain  in  Boston,  and  merely  ride  down  to  Newport  with  his 
wife  and  pass  a  day  or  two  ;  thence,  after  a  journey  to  the 
South,  returning  and  spending  nearly  the  whole  summer  in 
town.  If  an  experiment  like  this  could  succeed,  there  was 
an  end  of  anything  like  firm  and  just  taxation  in  Boston. 
But  it  could  not  succeed.  The  defendants  averred  and 
would  prove,  that  the  whole  arrangement  was  a  sham  ;  he 
would  not  say  a  disgraceful  sham — the  facts  would  speak  for 
themselves — but  he  would  say  it  was  a  sham  that  would  not 
even  have  the  merit  of  success. 


29 


It  would  appear  in  evidence  that  the  family  of  the  plaintiff 
consisted  of  about  a  dozen  persons,  and  that  the  whole  of 
them  were  in  the  house  in  Pemberton  Square  during  the 
whole  of  May,  a  large  part  of  June,  and  into  July,  with  the 
exception  of  a  visit  made  by  Mr.  and  Mrs.  Bourne  to  Mary¬ 
land  in  May,  and  a  day  or  two’s  absence  of  the  same  persons 
about  the  first  of  May  in  Newport.  During  the  winter  of 
1850—1,  the  house  in  Newport  was  closed  and  uninhabited. 
The  servants  went  down  to  open  and  clean  it  about  the 
middle  of  June.  One  of  those  servants  would  be  upon  the 
stand,  and  would  describe  the  appearance  of  the  house  at 
that  time.  The  cook,  who  was  hired  jn  Boston  expressly  to 
work  at  Newport,  did  not  leave  the  former  city  until  about 
the  middle  of  June.  Evidence  had  been  introduced  by  the 
plaintiff  to  show  that  Mr.  and  Mrs.  Bourne  dined  in  their 
Newport  house  on  May  1st.  The  jury,  from  the  evidence  to 
be  introduced,  would  judge  whether  that  was  true  ;  and  if  so, 
they  would  consider  the  peculiar  circumstances  under  which 
that  dinner  took  place.  It  was  not  until  July  that  the  family 
of  Mr.  Bourne  went  to  Newport,  and  even  then  the  house  in 
Boston  was  left  open  in  the  charge  of  servants,  and  so  re¬ 
mained  the  whole  period  of  their  absence.  They  returned 
early  in  September.  To  say  that  there  was  any  change  of 
domicil,  or  that  the  plaintiff  was  not  taxable  in  Boston  on 
May  1st,  was  preposterous. 

These  facts  would  be  proved,  and  by  the  very  persons  who 
best  knew  them.  Some  of  the  witnesses  came  here  with 
great  reluctance,  but  were  brought  here  by  the  summons  of 
this  court.  The  family  cook  in  Boston,  the  person  who  was 
hired  to  keep  the  house  open  in  1850,  would  be  produced 
here  to  testify.  The  cook  in  1851,  the  person  who  lived  in 
the  house  during  the  whole  summer,  would  be  here.  The 
Newport  cook  would  also  appear.  The  man-servant,  who 
went  with  the  family  to  Newport  and  returned  with  them  to 
Boston,  was  here  present.  He  should  also  place  upon  the 
stand  the  plaintiff’s  grocer,  his  provision  dealer,  his  milk-man, 
his  baker,  the  person  who  kept  his  horses  in  Boston,  with 
their  books  of  account,  and  the  jury  would  judge  from  their 


30 


statements  whether  the  plaintiff’s  home  was  in  Boston  on  May 
1st,  or  in  Newport.  He  should  also  read  in  evidence,  deeds  and 
other  documents,  and  let  the  jury  see  how  the  plaintiff  de¬ 
scribed  himself  as  to  residence.  He  should  also  call  the  clerks 
of  the  various  corporations  in  which  the  plaintiff  owned 
stocks,  and  the  jury  would  see  how  they  regarded  the  plain¬ 
tiff’s  residence. 

It  would  also  appear,  or  rather,  it  had  already  appeared, 
that  the  plaintiff  had  strong  inducements  in  a  pecuniary  point 
of  view  to  be  taxed  out  of  Boston.  For  two  years  past  he 
had  been  taxed  as  follows  : — 

1848.  Brookline,  -  $193.55 

1S49.  Brookline,  ...  261.50 

Even  this  dissatisfied  him,  and  in  1850,  when  he  went  to 
Newport,  he  wrote  the  following  significant  letter  : — 

(Copy.) 

Newport,  April  30th,  1850. 

Gentlemen, — 

This  is  to  give  you  notice  that  I  have  become  an  inhab¬ 
itant  of  Rhode  Island,  and  a  citizen  of  Newport,  and  that  it 
is  my  intention  to  make  this  my  permanent  residence,  and  it 
is  my  wish  to  pay  my  tax  here  upon  my  personal  property. 
I  occupy  a  small  house  on  Kay  street.  Hoping  and  trusting 
you  will  exercise  your  power  with  clemency  and  moderation, 
I  am,  with  great  respect, 

Your  obedient  servant, 

E.  A.  BOURNE. 

To  the  Assessors  of  the  town  of  Newport.. 

The  “  clemency  and  moderation”  exercised  by  the  asses¬ 
sors  of  Newport,  appears  from  the  fact  that  they  taxed  Mr. 
Bourne,  in  1850,  the  large  sum  of  $33,  and  in  1851  the  larger 
sum  of  $87.  This  was  the  whole  tax  paid  by  the  whole 
family.  The  tax  in  Boston,  in  1851  alone,  and  it  was  a  just 
and  fair  tax,  was  $3571.50. 

There  was  an  obvious  saving  to  the  pocket,  but  how  the 
honor  stood  affected  the  jury  would  be  better  able  to  judge 
when  they  had  heard  the  evidence. 


31 


The  following  witnesses  were  then  called  and  examined 
on  behalf  of  the  defendants. 

Clement  Willis. — I  reside  in  Essex  street,  in  Boston.  I 
was  an  assessor  in  1850  and  1851.  I  know  Ezra  A.  Bourne, 
the  plaintiff  in  this  suit.  I  have  known  him  20  years  or 
more.  He  was  president  of  the  State  Bank  before  he  retired 
from  business.  His  house  is  numbered  19  Pemberton  square. 
It  is  a  very  large  house.  I  was  a  per  diem  assessor,  and  his 
house  was  in  my  ward.  I  visited  the  house  in  May,  1851, 
somewhere  from  the  12th  to  the  20th.  I  called,  rung,  and 
inquired  for  Mr.  Bourne. 

Mr.  Chandler. — What  was  the  appearance  of  the  house  ? 

Mr.  Welch. — I  object  to  any  testimony  as  to  the  appear¬ 
ance  of  the  house. 

The  Court. — He  may  state  what  he  saw. 

Witness. — They  stated  that  he  had  gone  to  Rhode  Island. 

Mr.  Chandler. — What  was  the  appearance  of  the  house 
outside  ? 

Mr.  Welch  objected  to  the  question. 

Mr.  Chandler. — I  mean  to  prove  an  evasion  of  the  law,  by 
showing  the  appearance  of  the  house.  I  intend  to  show  that 
the  plaintiff’s  going  to  Rhode  Island  was  for  the  mere  purpose 
of  evading  his  taxes. 

Mr.  Welch. — He  had  a  right  to  go  to  Rhode  Island,  and 
pay  his  taxes  there,  if  he  chose. 

Witness. — The  house  looked  as  if  it  was  inhabited.  The 
carpets  were  not  taken  up.  The  front  of  the  house  was 
shut  up,  and  every  blind  closed.  The  back  part  of  the 
house  was  open.  1  passed  the  house  almost  every  week 
day  in  May.  Every  day  I  saw  the  front  blinds  closed,  and 
those  on  the  back  part  of  the  house  open. 

Mr.  Chandler. — Did  this  fact  make  an  impression  oh  your 
mind,  so  that  you  spoke  of  it  to  others  ? 

Mr.  Welch  objected  to  the  question,  and  it  was  ruled  out. 

Witness. — I  frequently  saw  the  carriage  stop  at  the  door. 

Cross-examined. — I  usually  passed  the  house  about  one 
o’clock.  The  house  fronts  the  east  nearly  ;  the  rear  is  west. 


32 


It  is  the  house  taxed  to  the  plaintiff  as  trustee  for  his  wife 
I  had  something  to  do  with  assessing  this  tax.  I  advised  the 
assessment.  I  took  the  place  of  a  permanent  assessor,  and 
my  duties  were  the  same.  I  think  it  was  after  May  12,  that 
the  taxes  were  assessed.  I  have  not  been  active  in  getting 
up  this  case  ;  not  at  all. 

Direct  resumed. — I  noticed  always,  when  I  passed,  that 
the  front  of  the  house  was  shut,  and  the  back  part  open.  I 
passed  about  one  o’clock,  or  a  little  after. 

Cross-examined. — There  are  large  houses  in  the  rear, 
standing  above  it.  This  is  a  corner  house.  There  is  a  large 
open  space  in  front. 

Direct  resumed. — I  don’t  recollect  any  end  windows. 

Samuel  G.  Studley. — I  am  the  book-keeper  for  S.  S.  Pierce, 
grocer.  I  know  Ezra  A.  Bourne  by  sight  only.  He  dealt 
with  that  concern  in  1851,  and  in  previous  years.  Articles 
were  delivered  at  his  house  during  the  summer  of  1851.  Mr. 
Bourne  paid  for  them.  I  have  the  books  here.  (Here  he 
opened  to  Mr.  Bourne’s  account  on  the  leger.) 

Mr.  Welch  objected  that  books  were  not  admissible. 

Mr.  Chandler. — I  wish  to  show  that  Mr.  Bourne  paid  this 
very  account. 

Witness. — I  was  with  Mr.  Pierce  at  that  time.  There  are 
charges  upon  his  books,  to  Mr.  Bourne,  on  the  following  dates  : 
1S51,  January  1,  4,  6,  8,  9  11, 15,  16,  IS,  22,  23,  25,  28,  29, 
30;  February  1,  4,  5,  6,  8,  12,  14,  17,  IS,  19,  21,  22,  24,  26, 

28  ;  March  1,  3,  4,  5,  6,  7,  8,  10,  11,  15,  17,  18,  19,  22,  24, 

25,  29  ;  April  1,  2,  4,  5,  7,  8,  9,  11,  12,  14,  17,  18,  19,  21, 
22,  24,  28,  29  ;  May,  1,  2,  5,  6,  8,  9,  10,  14,  16,  19,  21,  24, 

26,  27,  31  ;  June  5,  6,  9,  10,  14,  16,  17,  19,  20,  21,  23,  24, 

26,  27  ;  July  1,  2,  3,  5,  7,  9,  10,  11,  12,  14,  18,  19,  24,  31  ; 
August  6,  19,  22;  September  1,3,  10,  11,  16,  17,  18,  20,  23, 
24,  25,  27 ;  October  3,  6,  8,  9,  10,  13,  16,  21,  24,  31  ;  Novem¬ 
ber  1,  7,  8,  10,  11,  14,  20,  28,  29;  December  2,  3.  4,  6,  8,  9, 

11,  12,  13,  16,  17,  18,  19,  20,  22,  23,  24,  26,  27,  30.  This 

account  was  settled  by  Mr.  Bourne,  January  27,  1852.  The 
articles  were  delivered  in  the  same  way  in  May  as  in  previous 


33 


months.  I  know  no  change.  I  drew  off  a  statement  of  the 
items  at  the  request  of  the  defendants’  counsel.  This  is  the 
statement. 

Mr.  Sohier. — I  object  to  the  admission  of  the  account  in 
evidence.  The  fact  that  Mr.  Bourne  had  articles  in  those 
months  is  admissible,  hut  not  what  those  articles  were. 

Witness. — These  items  were  on  Mr.  Bourne’s  pass  book, 
and  the  pass  book  was  receipted. 

Cross-examined. — These  articles  were  delivered  in  the 
same  manner  as  in  previous  months.  The  servants  came  for 
them,  and  brought  a  pass  book.  The  general  order  was  to 
deliver  no  article  Avithout  the  pass  book.  I  don’t  recollect 
seeing  Mr.  Bourne  during  this  time.  The  same  course  was 
pursued  during  the  years  1848,  1849,  and  1850. 

Direct  resumed. — I  had  no  account  with  Mr.  Rice.  I  have 
heard  of  him.  I  never  sold  him  anything. 

Sylvester  Seaverns. — I  am  a  provision  dealer.  I  keep  at 
No.  26  School  street.  The  name  of  the  firm  is  A.  Seaverns 
&  Co.  I  know  Ezra  A.  Bourne.  I  have  known  him  for  five 
years.  I  have  dealt  with  him  for  about  the  same  time.  He 
lives  in  Pemberton  square,  No.  19.  I  had  an  account  with 
him  in  1851.  I  have  it  here.  There  is  no  charge  in  Feb¬ 
ruary  or  March,  1851.  The  account  started  29th  April,  1851. 
October  1,  1849,  is  the  first  charge  on  this  book.  From 
August  1850,  to  April  1851,  he  had  very  few  things.  I  know 
no  reason  for  that.  The  young  man  carried  these  things  to 
Mr.  Bourne’s  house.  I  don’t  know  who  ordered  them.  An 
order  was  sent  to  the  store  by  our  young  man.  He  went  up. 
to  the  house.  The  order  was  always  in  writing.  We  kept 
all  the  orders.  It  was  their  wish  that  the  orders  should  be 
so  preserved.  It  was  the  wish  of  Mr.  and  Mrs.  Bourne. 
Nothing  particular  was  said  at  the  time.  Those  orders  were 
to  serve  as  checks  by  which  to  pay  the  bills.  They  had  a 
pass  book  besides.  Mr.  Bourne  paid  these  bills.  Each  item 
was  compared  with  these  orders,  and  settled  with  Mr.  Bourne, 
and  the  orders  given  to  him.  There  were  charges  on  the 
following  dates  :  1851,  April  29,  30  ;  May  1,  2,  3,  5,  6,  7,  8, 

5 


34 


9,  10,  12,  13,  14,  15,  16,  17,  19,  20,  21,  22,  23,  24,  26,  27, 
28,  29,  30,  31  ;  June  2,  3,  4,  5,  6,  7,  9,  10,  11,  12,  13,  14, 
16,  17,  18,  19,  20,  21,  23,  24,  25,  26,  27,  28,  30;  July  1,  2, 
3,  4,  5,  7,  8,  9,  10,  11,  12,  14,  15,  16,  17,  18,  19,  21,  22,  23, 
24,  26,  30.  Those  were  also  delivered  on  orders.  The  or¬ 
ders  were  preserved,  and  returned,  and  settled.  I  will  give  a 
copy  of  these  items.  I  cannot  to-night. 

Cross-examined. — The  pass  book  was  a  small  book  kept 
at  Mr.  Bourne’s  house.  The  book  was  not  sent  down.  On 
these  orders  Avas  put  down  the  article  that  was  wanted, 
such  as  <!  a  piece  of  beef  to  roast,”  or  “  a  piece  of  mutton  to 
boil.”  They  were  brought  down  by  our  boy.  The  boy 
goes  round  first  to  customers  to  see  what  is  wanted.  He 
brings  the  order  to  the  shop,  and  then  the  article  is  carried 
up,  and  put  on  the  pass  book.  The  order  does  not  bear  any 
formal  signature. 

Robert  Campbell. — I  am  the  boy.  I  was  in  the  employ  of 
Mr.  Seaverns  in  1S49, 1850,  and  1851.  I  delivered  the  princi¬ 
pal  part  of  what  they  wanted  in  Pemberton  square.  Sometimes 
somebody  else  carried  them.  The  orders  were  given  by  differ¬ 
ent  persons.  They  were  given  by  Mrs.  Bourne  when  she  was 
at  home.  I  delivered  the  articles  at  No.  19  Pemberton  square ; 
the  corner  house. 

The  witness  was  not  cross-examined. 

George  E.  Adams. — I  reside  in  Medford.  My  business  is 
that  of  a  farmer.  I  supplied  Mr.  Bourne  with  milk  in  1851, 
all  the  time  that  the  house  was  opened.  I  cannot  say  whether 
the  house  was  shut  any  part  of  the  time.  I  did  not  deliver  it 
myself  all  summer.  I  delivered  till  the  first  part  of  July. 
The  bills  were  sometimes  paid  by  Mrs.  Bourne ;  sometimes 
the  money  was  left  by  her.  It  was 'mostly  paid  to  my  man. 
My  man  left  the  milk  after  the  1st  of  July.  I  think  that  the 
money  was  paid  to  me. 

Cross-exami?ied. — I  never  saw  Mr.  Bourne  but  once.  I 
delivered  less  milk  in  the  summer  than  in  winter. 

Direct  resumed. — My  man  was  Sumner  Winslow. 


35 


Sumner  Winslow. — I  was  in  Mr.  Adams’s  employ.  I  de¬ 
livered  milk  in  the  summer  of  1851,  at  Mr.  Bourne’s,  in 
Pemberton  square.  I  went  on  the  cars  alone  from  the  5th 
of  July  to  the  9th  of  September.  I  rendered  my  account  to 
Mr.  Adams. 

The  witness  was  not  cross-examined. 

John  Taylor. — I  am  a  baker.  I  do  business  at  No.  134 
Pleasant  street,  Boston.  I  know  Mrs.  Bourne.  I  don’t  know 
all  the  family.  I  delivered  bread  at  Mr.  Bourne’s  in  1851. 
I  think  I  stopped  in  May  or  June.  Bakers  keep  a  book  in 
each  house,  and  enter  articles.  When  1  stopped  delivering 
bread  Mrs.  Bourne  said  she  wanted  to  change  her  baker,  and 
asked  me  to  leave  the  book.  I  delivered  bread  at  Mr.  Bourne’s 
in  1850. 

Cross-examined. — I  delivered  bread  in  1848  and  1S49.  I 
did  not  for  the  whole  summer.  I  think  I  did  not  leave  any 
during  the  summer  months. 

Nelson  E .  Nims. — I  keep  a  stable  in  Chardon  street.  '  I 
know  Mr.  Bourne.  I  keep  his  horses.  I  kept  them  in  April, 
May,  and  June,  1851.  They  went  away  on  the  3d  of  July, 
1851.  I  suppose  they  went  to  Newport.  He  kept  a  coach¬ 
man,  who  lodged  at  his  (Mr.  Bourne’s)  house.  The  carriage 
was  out  constantly  in  May  and  June.  The  coachman  came 
to  get  it.  The  carriage  went  from  my  stable  to  the  house, 
and  then  went  away.  They  generally  rode  when  it  was 
pleasant. 

Cross-examined. — A  hack  from  my  place  carried  Mr.  and 
Mrs.  Bourne  to  the  railroad  station,  April  29,  1851. 

Direct  resumed. — I  could  not  say  what  time  of  day. 

Cross-examined. — They  went  by  the  Old  Colony  Railroad. 
They  don’t  generally  go  in  their  own  carriage  to  railroads 
when  there  is  baggage. 

E.  A.  Danforth. — I  am  a  clerk  in  the  Transcript  office.  I 
have  the  entire  charge  of  the  mail  book.  That  book  shows 
the  time  when  persons  out  of  town  commence  taking  their 


36 


papers,  and  when  they  stop.  Mr.  Bourne  takes  the  paper. 
The  change  was  made  in  1851,  July  12,  from  No.  19 
Pemberton  Square,  Boston,  to  Newport,  R.  I.  The  book 
shows  that  it  was  sent  to  Pemberton  Square  up  to  that  time. 

The  witness  was  not  cross-examined. 

Henry  Sargent. — I  am  one  of  the  assessors  of  Boston.  I 
have  been  an  assessor  for  about  eight  consecutive  years. 

Mr.  Chandler. — Are  these  the  returns  received  by  the  as¬ 
sessors  of  Boston  from  the  offices  of  different  corporations, 
showing  the  amount  cf  stocks  held  in  such  corporations  ? 

Mr.  Welch. — We  object  to  the  evidence. 

Mr.  Sohier. — We  admit  that  they  are  the  returns  for  the 
years  in  question ;  but  we  do  not  admit  that  they  are  legal 
evidence  in  this  case. 

Mr.  Chandler. — I  offer  to  put  them  in  for  two  reasons  ;  1st, 
as  tending  to  show  an  evasion  of  the  tax  law  of  Boston,  and 
2d,  as  tending  to  show  that  Mr.  Bourne’s  residence  was  in 
Boston. 

These  returns  were  made  by  persons  acquainted  with  him, 
and  notwithstanding  he  claimed  to  be  a  resident  of  Brookline 
and  of  Newport,  these  returns  were  always  sent  to  Boston ; 
while  no  returns  were  ever  sent  to  Brookline  or  Newport ;  and 
this  was  well  known  to  the  plaintiff,  and  was  allowed  to  go 
on  for  years. 

The  Court  excluded  these  returns  as  incompetent  evidence, 
unless  they  were  shown  to  be  connected  with  Mr.  Bourne. 

Ellen  Murphy. — I  reside  in  Boston.  I  am  cook  at  Mr.  Wm. 
Appleton’s.  Mr.  Appleton  is  now  away,  and  I  am  with  Mr. 
Coolidge.  I  was  in  Mr.  Bourne’s  employ  from  the  22d  of 
April  to  October  15, 1851.  Mrs.  Bourne  employed  me.  She 
employed  me  to  do  cooking.  I  did  cooking  from  the  time  I 
went  till  the  last  week  in  July.  I  was  in  the  house  at  Pem¬ 
berton  Square  all  that  time,  and  took  care  of  the  house  when 
Mrs.  Bourne  was  away.  Mr.  Bourne  left  either  on  the  29th 
•  or  30th  of  April.  I  think  Mrs.  Bourne  went  with  him.  She 
went  South,  and  returned  in  two  or  three  weeks.  I  think  she 


37 


went  to  Newport  with  Mr.  Bourne,  but  am  not  certain.  She 
came  back  from  the  South  in  May.  Mrs.  Bourne  kept  seven 
servants.  She  did  not  all  times  have  that  number,  owing  to 
changes.  There  were  two  chambermaids,  a  seamstress,  a 
laundress,  a  coachman,  an  inside  man-servant,  and  a  cook. 
The  coachman,  the  inside  man-servant,  and  the  seamstress, 
went  to  Newport.  The  seamstress  went  in  June.  The  coach¬ 
man  went  in  July.  The  inside  man-servant  went  when  Mr. 
and  Mrs.  Bourne  went,  about  the  last  week  in  July.  Mrs. 
Bourne  came  back  from  the  South,  and  was  in  Boston  about 
the  last  week  of  May.  She  remained  in  Boston  till,  I  think, 
the  last  week  in  July.  She  was  in  New  York  a  day  or  two, 
and  that  was  all.  Mrs.  Rice  was  there  till  they  went  to  New¬ 
port,  the  last  week  in  July.  Mrs.  Rice  had  two  servants ;  a 
waiting  maid  and  a  monthly  nurse.  I  knew  no  other  mis¬ 
tress  but  Mrs.  Bourne.  No  servants  went  from  the  house 
when  Mr.  and  Mrs.  Bourne  went  on  the  29th  of  April.  The 
seamstress,  and  a  woman  hired  to  do  the  cooking  at  Newport, 
were  the  first  that  went.  The  woman  hired  to  do  the  cook¬ 
ing  at  Newport,  came  and  staid  at  the  house  in  Pemberton 
Square  ten  days  or  a  fortnight  before  she  went  to  Newport. 
The  seamstress  and  this  woman  were  the  first  servants  that 
went  to  Newport  that  I  knew  of.  I  should  think  that  was 
about  the  10th  or  12th  of  June.  I  did  not  hear  Mr.  Bourne 
give  any  orders  respecting  it. 

Mr.  Sohiek. — I  object  to  testimony  of  any  orders,  unless 
given  by  Mr.  Bourne. 

Witness. — The  man-servant  generally  slept  in  the  house, 
but  slept  out  of  the  house  when  the  Newport  cook  was  there. 
I  think  she  occupied  his  room.  I  think  the  carriage  went  on 
the  5th  of  July. 

Mr.  Sohier. — We  admit  that  the  carriage  went  to  Newport 
on  the  5th  of  July,  or  on  the  3d. 

Witness. — The  ladies  rode  out,  sometimes,  in  Mr.  Bourne’s 
carriage,  driven  by  the  coachman.  I  saw  no  difference  in  the 
use  of  the  carriage.  One  of  the  Miss  Thorndikes  was  mar¬ 
ried  on  the  2d  of  October,  1851.  She  went  from  the  house 
to  be  married.  I  remained  in  the  house  after  the  family 


38 


went.  I  kept  house.  The  house  was  kept  open.  The 
chambermaid  staid.  Miss  Anna,  Miss  Martha,  the  seamstress, 
and  Mr.  Bourne,  came  there  and  staid  after  the  family  went 
to  Newport.  The  family  returned  from  Newport  about  the 
15th  of  September.  They  did  not  return  to  Newport  after 
that  time. 

Cross  Examined. — Miss  Thorndike  was  not  married  at  the 
house.  She  went  away  to  be  married.  Mrs.  Rice  came  there 
and  was  confined.  Mrs.  Rice  was  taken  sick  on  the  16th  of 
June.  Her  mother  staid  with  her  till  she  could  go  to  New¬ 
port.  Mr.  Bourne  came  up  and  staid  awhile ;  and  then  went 
to  Newport.  They  went  South  in  October. 

Direct  resumed. — I  think  Mr.  Bourne  was  at  the  house 
when  the  child  was  born. 

Mary  Coughlan. — I  reside  in  Boston.  I  know  Mr.  and  Mrs. 
Bourne.  They  live  in  Boston,  in  Pemberton  Square.  Mrs. 
Bourne  engaged  me  to  do  cooking  in  Newport.  She  engaged 
me  about  the  last  of  May,  to  go  to  Newport  in  the  summer 
season.  I  remained  one  week  in  the  house  in  Pemberton 
Square.  I  then  went  to  Newport  about  the  13th  of  June, 
and  did  the  cooking.  Miss  Low,  the  seamstress,  went  with 
me.  When  I  got  to  Newport  I  commenced  house  cleaning. 
No  one  was  there.  The  house  was  shut  up.  The  key  was 
at  Mrs.  Tirrell’s.  The  house  was  very  damp  and  cold.  The 
first  thing  I  did  was  to  make  a  fire.  There  was  nothing  there 
to  eat.  I  found  a  piece  of  old  cheese  that  looked  as  if  some¬ 
thing  had  been  at  it,  more  than  human  beings.  It  was  mag- 
gotty.  Every  thing  in  the  house  was  in  a  very  filthy  condi¬ 
tion.  It  took  me  some  time  to  clean  them.  The  house  had 
the  appearance  of  having  been  shut  up  for  some  time.  I  did 
not  come  back  with  the  family. 

Cross-examined. — I  did  not  find  dishes  lying  about  un¬ 
washed. 

Direct  resumed.  The  full  complement  of  servants,  as 
well  as  I  could  understand,  was  at  the  house  in  Pemberton 
Square  when  I  went  there.  Mrs.  Bourne  was  there  when  she 
engaged  me.  Mr.  Bourne  was  there  when  I  went  to  Newport. 


39 


Cross-examined. — I  don’t  know  who  the  man  was  who 
first  came  and  talked  with  me  about  my  testimony  in  this 
case.  I  did  not  come  back  with  the  family  from  Newport. 

Joseph  Williams. — I  am  termed  an  in-door  servant.  I  live 
now  with  Mr.  Nat.  Thayer.  My  native  place  is  Salem.  I 
lived  with  Dr.  Bigelow  in  April  and  May,  and  three  or  four 
days  in  June,  1851.  I  went  from  Dr.  Bigelow’s  to  live  with 
Mr.  Bourne,  at  No.  19  Pemberton  Square.  I  don’t  know 
whether  Mr.  Bourne  was  present  when  I  was  engaged  or  not. 
I  had  seen  him  before.  Mrs.  Bourne  engaged  me,  and  came 
to  Dr.  Bigelow’s  after  me.  I  went  to  Mr.  Bourne’s  to  live, 
on  the  5th  of  June.  There  were  then  a  cook,  two  chamber¬ 
maids,  a  seamstress  and  a  coachman.  I  don’t  know  whether 
there  was  a  laundress  or  not.  There  were  also  two  women 
of  Mrs.  Rice’s  ;  a  lady’s  maid  and  a  nurse.  Mrs.  Rice,  Mrs. 
Bourne,  and  one  of  the  Miss  Thorndikes  were  there.  I  am 
not  sure  whether  Mr.  Bourne  was  there  or  not ;  he  was  soon 
after.  I  had,  for  a  short  time,  to  sleep  out  of  the  house,  it 
was  so  full.  Mary  Coughlan  occupied  my  room.  Mary 
Coughlan  and  Margaret  went  down  to  Newport  first.  It  was 
in  June,  and  after  I  went  there.  I  think  it  was  before  June 
loth.  I  think  West,  and  the  carriage,  and  Mr.  Bourne  went 
next,  July  3.  I  think  I  went  the  last  of  July.  The  family 
went  the  day  before  I  went ;  Mrs.  Bourne,  Mrs.  Rice,  Miss 
Thorndike,  and  Mrs.  Rice’s  two  maids.  I  went  down  to  the 
depot  and  saw  them  off.  I  went  the  next  day.  I  went  down 
in  April,  1852,  to  open  the  house.  It  was  shut  up  and  un¬ 
occupied. 

Mr.  Sohier. — I  admit  that  the  house  was  shut  up  in  the 
winter. 

Cross-examined. — A  person  came  to  me  a  few  days  ago, 
and  asked  me  if  I  had  lived  with  Mr.  Bourne.  I  don’t  know 
his  name. 

The  hour  of  six  having  arrived,  the  Court  now  adjourned 
to  the  next  morning,  at  nine  o’clock. 


40 


SECOND  DAY. 

Thursday,  March  3,  1S53. 

At  the  opening  of  the  Court,  Mr.  Chandler  applied  for  a 
capias  for  Ebenezer  Francis,  to  compel  his  attendance  as  a 
witness.  He  said  the  officer  who  served  the  summons  was 
not  present,  but  Mr.  Francis,  after  he  was  summoned,  came 
into  his  (Mr.  Chandler’s)  office,  and  stated  that  he  was  not 
able  to  attend,  and  would  not  attend.  That  was  on  a  very 
stormy,  unpleasant  day,  and  if  Mr.  Francis  was  able  to  be  at 
his  office  on  such  a  day,  he  thought  he  was  able  to  attend  the 
Court  now. 

Mr.  Welch  produced  letters  from  Dr.  Jackson,  to  the  effect 
that  it  would  be  unsafe  for  Mr.  Francis  to  attend  Court. 

Mr.  Welch  said  he  would  admit  Mr.  Francis’s  written  state¬ 
ment  ;  and  that  he  had  offered  to  have  Mr.  Francis’s  deposi¬ 
tion  taken. 

Mr.  Chandler  said  that  Mr.  Francis  did  not  answer  one 
question,  which  he  had  a  right  to  have  answered:  but  he 
disliked  to  press  a  matter  of  this  sort,  especially  with  a  gen¬ 
tleman  of  Mr.  Francis’s  age. 

Mr.  Chandler  then  put  in  Mr.  Francis’s  statement  as  fol¬ 
lows  : — 

“ 1  hereby  certify  that  I  have  examined  my  books,  and  find 
the  following  entries,  under  date  of  October  7,  184S. 

“Cash,  Dr.  to  Cedar  Grove  Farm,  $175 

For  rent  of  Mr.  Bourne  of  house,  from  April  1  to  November  1.” 

Also  from  my  waste  book  under  date  October  1,  1S49, — 

“Cash  Dr.,  Farm  Cedar  Grove,  for  rent  Mr.  Bourne,  $150 

EBEN.  FRANCIS. 

Boston,  Feb.  28,  1853. 

“  Several  days  since,  immediately  after  being  summoned,  I 
wrote  Mr.  and  sent  him  the  substance  of  the  above,  it  may 


41 


not  exactly  be  the  same  as  the  above,  as  I  had  not  time  to 
look  so  particularly  as  I  have  had  this  day. 

Cedar  Grove  Farm  is  in  the  town  of  Brookline.” 

Mr.  Chandler. — I  propose  to  prove  the  dividends  (a  part 
of  them)  which  were  paid  to  Mr.  Bourne,  and  personally  re¬ 
ceived  by  him  from  different  corporations,  during  the  years 
1850  and  1851.  I  have  had  the  clerks  of  the  corporations  in 
attendance  ;  and  now  have  the  statements  made  by  them. 

Mr.  Welch. — Why  are  these  admissible? 

Mr.  Chandler. — To  show  that  Mr.  Bourne  was  an  active 
man,  attending  to  business  and  collecting  dividends;  and  to 
show  that  he  was  in  Boston  at  the  dates. 

Mr.  Welch. — We  have  always  admitted  that  he  came  up 
to  Boston  and  received  his  dividends. 

The  Court. — All  the  acts  of  the  party  are  competent.  As 
to  the  effect  and  weight  of  the  testimony,  that  is  another 
question. 

Mr.  Chandler  was  then  proceeding  to  read  the  paper. 

Mr.  Sohier. — This  is  only  admissible  to  show  the  dates. 

The  Court. — It  is  admissible  to  show  that  he  was,  at  those 
dates,  transacting  business  in  Boston. 

Mr.  Chandler. — A  question  of  domicil,  of  habitancy,  of 
residence,  involves  a  vast  number  of  considerations.  On  the 
question  of  changing  a  person’s  domicil,  it  is  competent  to 
show  his  wealth,  and  his  station  in  society.  Suppose  a  man 
worth  half  a  million,  owning  a  large  mansion  and  costly  fur¬ 
niture,  keeping  a  large  number  of  servants,  attempts  to  show 
a  change  of  residence  to  a  place  obviously  unfitted  to  his  cir¬ 
cumstances.  We  propose  to  show  Mr.  Bourne’s  wealth,  his 
condition,  his  position  in  society,  and  to  argue  from  these 
that  it  was  not  his  bona  fide  intention  to  change  his  residence 
to  Newport.  This  must  depend  upon  a  vast  variety  of  cir¬ 
cumstances.  We  might  safely  admit  (but  we  do  not)  that 
he  went  to  Newport  in  order  to  spend  two  or  three  summer 
months  in  Newport.  If  he  had  been  a  man  of  moderate  means, 
we  might  suppose  that  he  intended  to  change  his  home 
to  the  small  house  on  Kay  street,  mentioned  in  the  plaintiff’ 


6 


42 


letter.  Bat  we  cannot  think  so,  when  we  consider  the  great 
wealth  of  this  family.  It  is  not  to  be  believed  a  moment. 

Mr.  Welch. — Mr.  Bourne  has  two  residences.  There  is 
no  doubt  about  that.  The  only  question  is,  which  was  his 
residence  for  purposes  of  taxation. 

The  Court. — I  doubt  that  point  very  much.  I  doubt 
whether  a  man  can  have  two  legal  residences,  for  any  pur¬ 
pose. 

Mr.  Welch. — He  may  have  two  residences,  but  he  can 
have  only  one  for  purposes  of  taxation,  and  the  enjoyment  of 
municipal  rights.  He  has  only  one  residence,  in  a  legal 
sense. 

The  Court. — This  evidence  has  a  tendency  to  show  that 
the  interests  of  the  plaintiff  were  likely  to  keep  him  in 
Boston. 

Mr.  Sohier. — So  far  it  is  admissible  ;  but  it  is  immaterial. 
It  is  not  admissible  to  show  that  he  was  a  rich  man,  and 
therefore  likely  to  live  in  Boston. 

The  Court. — Is  there  any  controversy,  Mr.  Chandler,  as  to 
the  tax  assessed  to  Mr.  Bourne,  as  trustee  of  Miss  Thorndike  ? 

Mr.  Chandler. — That  will  be  a  question  of  law,  on  which 
I  will  address  the  Court.  I  have  some  authorities  on  that 
point. 

Mr.  Chandler  then  read  the  following  statement,  made  out 
by  the  officers  of  the  several  corporations  named  below : — 

Dividends  received  and  receipted  for  by  the  plaintiff  in  1850 

and  1851. 


Declared. 

Jan.  28,  1850. 

20  shares  Mass.  Cott.  Mills. 

Paid. 

Jan.  28,  1850,  - 

$600.00 

July  22, 

<< 

July  27,  “  ... 

600.00 

Jan.  27, 

1851. 

Jan.  27,  1851, 

600.00 

Feb.  15, 

1S50. 

12  shares  Boott  Cotton  Mills. 

Feb.  18,  1S50, 

$360.00 

Aug,  15, 

U 

Aug.  16,  “  ... 

360.00 

Feb.  15, 

1851. 

Feb.  15,  1851, 

360.00 

Oct.  29, 

U 

Nov.  10,  “  - 

360.00 

43 


As  trustee  and  guardian ;  8  shares  Mass.  Cott.  Mills. 


Declared.  Paid. 

Jan.  28,  1850.  Jan.  28,  1850,  -  -  -  $240.00 

July  22,  “  July  27,  “  ...  240.00 

Jan.  27,  1851.  Jan.  27,  1851,  -  .  -  240.00 

Appleton  Co. ;  for  himself,  and  as 
trustee  and  guardian. 

June  21,  1850.  June  21,  1S50,  14  shares,  $420.00 

Dec.  20,  “  Dec.  20,  “  do.  420.00 

Hamilton  Manufacturing  Co. ;  for  him¬ 
self,  and  as  trustee  and  guardian. 

June  21,  1850.  June  21,  1850,  30  shares,  $900.00 

Dec.  20,  “  Dec.  20,  “  do.  900.00 

June,  1851,  no  dividend. 

Dec.  16,  1851.  Dec.  16,  1851,  do.  630.00 

Washington  Insurance  Co.  ;  10  shares. 

April  9,  1850.  April  9,  1850,  -  $60.00 

Oct.  8,  “  Oct.  10,  “  -  -  -  60.00 

April  8,  1851.  April  11,  1851,  -  60.00 

Oct.  14,  “  Nov.  8.  “  ...  60.00 

Hope  Insurance  Co.  ;  10  shares. 

April  4,  1850.  April  16,  1850,  ...  $50.00 

Oct.  4,  “  Oct.  5,  “  ...  50.00 

April,  1851.  April  9,  1851,  ...  50.00 

Oct.  “  Nov.  8,  “  ...  50.00 


National  Insurance  Co. ;  for  himself, 
and  as  trustee  and  guardian. 


April  3, 

1850. 

April  3,  1850, 

93  shares, 

$465.00 

Oct.  9, 

U 

Oct.  14,  11 

do. 

372.00 

April  9, 

1851. 

April  9,  1851, 

do. 

465.00 

Oct.  8, 

U 

Nov.  8,  “ 

do. 

465.00 

Firemen’s  Insurance  Office,  40  shares. 

Jan.  4, 

1850. 

Jan.  14,  1850, 

- 

$100.00 

July  2, 

U 

July  25,  “ 

- 

100.00 

44 


Declared.  Paid. 

Jan.  4,  1851.  Jan.  15,  1851,  -  -  -  100.00 

July  3,  “  Aug.  1,  «  ...  100.00 

Western  Railroad ;  2S6  shares  as 
trustee. 

Jan.  1,  1850.  Jan.  1,  1850,  -  -  -  $1144.00 

July  1,  “  July  1,  “  -  1144.00 

Jan.  1,  1851.  Jan.  1,  1851,  -  -  -  1144.00 

July  1,  “  July  1,  “  ...  1144.00 


State  Bank ;  for  himself,  and 
trustee  and  guardian. 


April  1, 

1850. 

April  1,  1850, 

666  share 

Oct.  7, 

(( 

Oct.  5,  “ 

do. 

April  7, 

1851. 

April  5,  1851, 

do. 

Oct.  6, 

a 

Oct.  4,  “ 

do. 

as 


$1398.60 

1395.60 

1398.60 

1398.60 


Manufacturers’  Ins.  Co. ;  30  shares 


in  his  own  name. 

April  10,  1850.  April  10,  1850,  -  -  -  $300.00 

Oct.  9,  “  Oct.  14,  “  ...  300.00 

April  9,  1851.  April  9,  1851,  -  -  -  300.00 

Oct.  8,  “  Nov.  8,  “  -  450.00 


Lawrence  Manufacturing  Co. ;  in  his 
own  name. 

March  14,  1S50,  25  shares, 

Sept.  20,  “  do. 

March  14,  1851,  do. 


$1000.00 

750.00 

500.00 


Mr.  Chandler. — I  now  offer  to  put  in  the  returns  from  sev¬ 
eral  corporations  to  the  assessors  of  Boston. 

Mr.  Welch. — I  object  to  their  admission,  as  being  merely 
the  statements  of  the  clerks,  and  therefore  not  legal  evi¬ 
dence. 

Mr.  Chandler. — The  clerks  will  be  here,  and  will  testify 
t  hat  their  books  show  that  such  stock  stands  thereon  in  Mr. 
Bourne’s  name.  This  testimony  was  only  ruled  out  when 


45 


offered  for  the  purpose  of  showing  the  residence  of  Mr. 
Bourne. 

Mr.  Welch. — We  will  admit  that  Mr.  Bourne  owned  such 
stocks,  if  Mr.  Chandler  will  make  out  a  list  of  them  from  the 
returns. 

Mr.  Chandler  accordingly  asked  Mr.  Sargent  (the  assessor 
who  had  testified)  to  make  out  such  a  list. 

Mr.  Chandler. — I  now  offer  to  put  in  the  account  of  Mr. 
Bourne,  as  guardian  of  these  two  daughters,  rendered  April 
22,  1850.  I  offer  it  for  the  same  purposes. 

Mr.  Welch. — I  object  to  evidence  respecting  that  property 
which  was  held  by  Mr.  Bourne  as  trustee  and  guardian. 

The  Court. — It  all  has  a  tendency  to  show  that  his  inter¬ 
ests  were  in  Boston. 

Mr.  Chandler  then  put  in  the  first  account  of  Ezra  Allen 
Bourne,  guardian  of  Elizabeth  Francis  and  Martha  Sylvester 
Thorndike,  of  Boston,  in  the  County  of  Suffolk,  minors, 
settled  April  22,  1850. 

A  schedule  of  personal  property  was  annexed,  amounting 
to  $211,802.01. 

The  Court. — Was  the  plaintiff  guardian  in  1851?  When 
did  the  guardianship  terminate? 

Mr.  Chandler. — I  will  read  the  whole  paper.  That  will 
show  when  his  guardianship  of  Miss  E.  F.  Thorndike  termi¬ 
nated.  (He  then  read  further  from  the  account,  showing  a 
settlement  with  her,  and  her  receipt  dated  April  22, 1850.) 

Mr.  Chandler. — I  now  propose  to  put  in  certain  deeds  from 
and  to  Mr.  Bourne. 

The  Court. — You  should  call  the  attention  of  the  jury  to 
all  those  parts  of  the  account  on  which  you  intend  to  argue. 

Mr.  Chandler. — I  intend  to  rely  upon  the  whole  account, 
and  every  item  of  it.  I  will  read  it  if  desired.  I  propose  to 
show  that  these  persons  who  are  named  in  the  account,  all, 
or  most  of  them,  reside  in  Boston,  or  have  offices  in  State 
street. 

Mr.  Welch. — I  shall  object  to  any  argument  respecting  the 
property  held  in  trust  for  Miss  Thorndike. 


46 


Mr.  Chandler. — I  now  offer  several  deeds,  covering  the 
space  of  time  in  question,  in  which  Mr.  Bourne  describes 
himself  as  of  Boston. 

Mr.  Welch. — I  object  to  the  evidence.  People  residing 
out  of  town,  but  doing  business  in  Boston,  frequently  de¬ 
scribe  themselves  as  of  Boston.  I  do  myself,  although  I  re¬ 
side  in  Waltham.  In  5  Yesey’s  Reports,  page  789,  Somer¬ 
ville  v.  Somerville,  the  Master  of  the  Rolls  says  that  he  lays 
no  stress  whatever  on  such  a  description  ;  that  it  was  totally 
immaterial  how  a  party  described  himself. 

The  Court. — I  regard  that  case  as  merely  showing  the 
opinion  of  the  Master  of  the  Rolls,  as  to  the  operation  of  the 
fact  upon  his  own  mind,  in  that  particular  case. 

Mr.  Welch. — Perhaps  it  is  so;  and  is  a  mere  question  for 
the  jury.  But  I  thought  it  my  duty  to  raise  the  objection. 

The  Court. — All  the  facts  and  circumstances  are  open  to 
the  jury. 

Mr.  Welch. — Are  the  deeds  received  by  Mr.  Bourne  admis¬ 
sible? 

The  Court. — The  fact  that  he  received  a  deed  in  which 
he  is  described  as  of  Boston,  is  a  fact  for  the  jury ;  and  they 
are  the  sole  judges  of  the  weight  and  effect  of  such  a  fact. 

Mr.  Chandler. — They  were  put  on  record  by  the  grantee. 

Mr.  Welch. — That  does  not  appear. 

The  Court. — Merely  the  fact  that  he  takes  a  deed  in  which 
he  is  so  described,  is  a  fact  for  the  jury. 

Mr.  Chandler  then  put  in  the  following  papers  : — 

Letter  of  guardianship,  by  Hon.  Edward  G.  Loring,  Judge  of 
Probate  for  the  County  of  Suffolk,  to  Ezra  A.  Bourne,  of  Bos¬ 
ton,  in  said  County,  Esquire,  appointing  him  guardian  of 
Elizabeth  I.  Thorndike  and  Martha  S.  Thorndike,  both  of 
said  Boston,  minors,  above  the  age  of  fourteen  years,  and 
children  of  Charles  Thorndike,  late  of  said  Boston,  merchant, 
deceased;  dated  July  10,  1S48. 

The  guardiaivs  bond  of  Ezra  A.  Bourne,  Esquire,  as  prin¬ 
cipal,  and  William  Shimmin,  Esquire,  and  IJ.  K.  Hall,  all  of 
Boston,  in  the  County  of  Suffolk,  as  sureties ;  dated  July  10, 
1848. 


47 


An  indenture  made  March  27,  1849,  by  and  between  Mary 
Adeline  Thorndike  of  Boston,  single  woman,  of  the  first  part, 
and  Ezra  A.  Bourne,  of  said  Boston,  gentleman,  of  the  second 
part ;  respecting  the  income  of  her  trust  property.  Acknowl¬ 
edged  March  27,  1849;  recorded  March  22, 1S51.  Lib.  618, 
fol.  175. 

An  assignment  of  a  mortgage,  by  Ezra  A.  Bourne,  of  Bos¬ 
ton,  in  the  County  of  Suffolk  and  Commonwealth  of  Massa¬ 
chusetts,  as  trustee  of  Anna  D.  Thorndike,  to  Elisha  T. 
Loring,  of  Dorchester,  in  the  County  of  Norfolk  and  said 
Commonwealth,  merchant;  date,  June  19,  1S50 ;  recorded 
June  27,  1850.  Lib.  611,  fol.  230. 

An  indenture,  made  March  21,  1851,  by  and  between  Anna 
D.  Thorndike,  of  Boston,  single  woman,  of  the  first  part,  and 
Ezra  A.  Bourne,  of  said  Boston,  gentleman,  of  the  second 
part,  respecting  the  income  of  her  trust  property.  Recorded 
March  22,  1S51.  Lib.  618,  fol.  173. 

Mr.  Chandler. — I  now  offer  an  indenture,  dated  October 
2,  1851,  between  Richard  T.  Parker  of  Staten  Island,  in  the 
State  of  New  York,  gentleman,  and  Martha  S.  Parker,  wife 
of  said  Richard,  late  Martha  S.  Thorndike,  of  Boston,  in  the 
County  of  Suffolk  and  Commonwealth  of  Massachusetts. 

Mr.  Sohier. — What  has  Mr.  Bourne  to  do  with  that  deed? 
He  is  no  party  to  it. 

Mr.  Chandler. — Mrs.  Parker  was  one  of  this  family,  and 
Mr.  Bourne  was  her  guardian. 

The  Court. — The  residence  of  a  minor  does  not  show  the 
residence  of  her  guardian. 

Mr.  Chandler. — I  withdraw  it.  I  don’t  wish  to  put  in 
anything  which  may  raise  any  question  of  law.  I  will  put  in 
another. 

I  now  put  in  the  resignation  of  Mr.  Francis,  and  the  ap¬ 
pointment  of  Mr.  Bourne,  as  trustee  of  Mrs.  Bourne  in  1846. 

Mr.  Sohier. — What  is  the  object  of  that? 

Mr.  Chandler. — To  show  that  Mr.  Bourne  is  the  trustee. 
They  rely  upon  his  being  trustee  in  order  to  support  their 
action. 

Mr.  Welch. — Mr.  Bourne  was  not  liable  as  trustee,  but  as 


48 


the  husband  of  Mrs.  Bourne.  I  wish  to  have  the  object  of 
this  testimony  stated. 

Mr.  Chandler. — I  intend  to  argue  this  question  to  the  jury 
on  two  grounds. 

1st.  A  change  of  domicil  requires  not  only  an  intention 
to  change  the  domicil,  but  also  the  actual  carrying  of  that  in¬ 
tention  into  effect. 

2d.  If  it  was  the  intention  of  Mr.  Bourne  to  evade  taxa¬ 
tion  anywhere,  and  he  made  an  arrangement  of  the  property 
of  the  family  for  that  purpose,  a  change  of  domicil  does  not 
avail  him.  I  wish  to  show  a  change  of  property  in  1847,  so 
that  Mr.  Bourne  should  represent  all  the  property.  One  ob¬ 
ject  was,  to  secure  the  property  from  the  tax  collector  any¬ 
where.  The  trust  property  was  never  taxed  in  Newport. 

The  Court. — How  does  the  change  of  the  trustee  affect 
the  taxation?  Mr.  Bourne  was  liable  to  be  taxed  while  Mr. 
Francis  was  trustee. 

Mr.  Chandler. — This  was  a  part  of  the  whole  arrangement. 
If  a  husband  reside  out  of  the  State,  the  property  is  taxable 
to  the  trustee  ;  but  if  he  reside  in  the  State,  it  is  taxable  to 
the  husband. 

The  Court. — I  think  the  testimony  is  competent. 

Mr.  Chandler  then  put  in  the  following  papers. 

1.  Indenture,  made  January  1,  1S46,  by  and  between 
Ezra  A.  Bourne,  of  Boston,  merchant,  and  Mary  M.  Bourne, 
wife  of  said  Ezra,  of  the  one  part,  and  Ebenezer  Francis,  of 
Roxbury,  Esquire,  of  the  second  part;  by  which  the  trust 
property  formerly  held  by  Mr.  Francis  for  Mrs.  Bourne,  was 
transferred  to  Mr.  Bourne  as  trustee.  Acknowledged  January 
19,  1846;  recorded  Lib.  556,  fob  175. 

2.  The  resignation  of  Ebenezer  Francis  as  such  trustee, 
and  the  appointment  of  Ezra  A.  Bourne,  January  19,  1846  ; 
recorded  Lib.  556,  fol.  174. 

3.  The  assignment  of  various  mortgages,  by  Josiah 
Quincy,  Jr.,  guardian  of  M.  A.  P.,  and  A.  D.  Thorndike,  to 
E.  A.  Bourne,  Esq.,  trustee  of*Mary  A.  P.  Thorndike,  of  the 
City  of  Boston,  dated  March  26,  1847,  acknowledged  April 
6,  1847 ;  recorded  Lib.  574,  fols.  280,  2Sl,and  282. 


49 


4.  An  agreement,  made  March  24,  1848,  by  and  between 
Anna  Dodge  Thorndike,  of  Boston,  in  the  County  of  Suffolk, 
single  woman,  of  the  first  part,  and  Ezra  Allen  Bourne,  of 
said  Boston,  Esquire,  of  the  second  part,  by  which  she  con¬ 
veyed  to  him  her  property  in  trust  for  “  her  own  separate 
use,  and  to  be  in  no  wise  liable  for  the  debts,  or  subject  to  the 
control  of  any  future  husband  of  said  Anna.”  Acknowledged 
March  24,  1848;  recorded  Lib.  583,  fol.  164. 

5.  A  mortgage  deed,  by  Charles  Maverick  Parker,  of  the 
City,  County  and  State  of  New  York,  gentleman,  formerly 
known  as  Charles  Parker,  to  Ezra  A.  Bourne  and  Samuel  Froth- 
ingham,  both  of  Boston,  in  the  County  of  Suffolk  and  Com¬ 
monwealth  of  Massachusetts,  gentlemen,  as  they  are  trustees 
under  the  last  will  and  testament  of  John  Parker,  late  of  said 
Boston,  merchant,  deceased;  dated  June  28,  1S48  ;  acknowl¬ 
edged  July  3,  1848  ;  recorded  Lib.  591,  fol.  290. 

6.  Assignment  of  a  mortgage,  by  Ezra  A.  Bourne,  of  Bos¬ 
ton,  in  the  County  of  Suffolk,  trustee  of  the  property  of  Anna 
D.  Thorndike,  to  Thomas  Thompson,  of  Brighton,  in  the 
County  of  Middlesex,  formerly  of  said  Boston,  gentleman, 
dated  December  15,  1851.  Lib.  627,  fol.  262. 

Mr.  Chandler  then  stated  the  points  of  law  on  which  he 
relied  in  relation  to  the  form  of  the  tax  assessed  upon  the 
plaintiff.  The  tax  of  the  plaintiff  in  1851  was  this  : — 

His  own  personal  and  poll  tax,  -  $S76.50 

As  trustee  of  Mrs.  Bourne,  -  875.00 

As  trustee  and  guardian  of  the  Misses  Thorndike,  1,820.00 

$3,571.50 

The  two  first  items  were  correct  in  form  beyond  all  ques¬ 
tion,  and  he  did  not  understand  that  they  were  objected  to 
on  that  account.  The  objection  to  the  last  item  was,  that 
one  or  more  of  the  Misses  Thorndike  having  arrived  of  age, 
this  property  was  held  by  Mr.  Bourne  in  trust ,  and  the  tax 
should  have  been  made  out  t#  them  by  virtue  of  the  tenth 
section  of  chapter  7,  of  the  Revised  Statutes,  clause  5,  which 
was  in  these  words  : 


7 


50 


“  All  personal  property,  held  in  trust  by  any  executor,  ad¬ 
ministrator,  or  trustee,  the  income  of  which  is  to  be  paid  to 
any  married  woman  or  other  person,  shall  be  assessed  to  the 
husband  of  such  married  woman,  or  to  such  other  person, 
respectively,  in  the  town  of  which  he  is  an  inhabitant ;  but 
if  such  married  woman,  or  other  person  reside  out  of  the 
state,  the  same  shall  be  assessed  to  said  executor,  administra¬ 
tor  or  trustee,  in  the  town  where  he  resides.” 

But  it  was  to  be  remembered,  that  the  plaintiff  was  guar¬ 
dian  of  one  of  the  Misses  Thorndike,  and  her  property  was 
taxable  to  him  by  virtue  of  the  Revised  Statutes  ch.  7,  sec. 
10,  clause  4,  which  expressly  provides  that  personal  property  of 
minors  shall  be  assessed  to  their  guardians  in  the  towns 
where  the  guardians  reside.  Now,  then,  as  a  portion  of  this 
tax  was  correct,  the  whole  must  stand,  so  far  as  this  suit  was 
concerned ,  because  the  plaintiff’s  remedy  was  by  appeal  to 
the  mayor  and  aldermen,  and  not  by  a  suit.  Nothing  was 
better  settled  in  law  than  this  :  Where  any  portion  of  a 
tax  is  correct,  and  a  party  is  dissatisfied  with  the  amount,  and 
alleges  that  he  is  taxed  for  more  than  he  has,  or  in  a  capacity 
which  he  does  not  fill,  or  for  what  he  does  not  own,  then  his 
remedy  is  by  appeal,  to  the  county  commissioners,  in  the 
various  counties,  except  Boston,  where  the  appeal  is  to  the 
mayor  and  aldermen.  It  is  only  where  a  party  complains 
that  his  whole  personal  tax,  or  his  whole  real  estate  tax  is 
wrong,  that  he  is  not  taxable  at  all — it  is  only  in  these  cases, 
that  suits  at  law  can  be  maintained. 

Where  one  is  overrated  by  assessors,  whether  by  including, 
in  the  valuation,  property  of  which  he  is  not  the  owner,  or 
that  for  which  he  is  not  liable  to  be  taxed,  his  only  remedy 
is  by  an  application  for  an  abatement,  pursuant  to  the  stat¬ 
ute.  Osborn  v.  Inhabitants  of  Danvers,  (6  Pickering’s  Re¬ 
ports  98.)  - 

The  same  doctrine  was  laid  down  in  the  cases  of  Howe  v. 
City  of  Boston,  recently  decided,  and  Bates  v.  City  of  Bos¬ 
ton,  (5  Cushing’s  Reports  93.)  The  last  case  was  very  sim¬ 
ilar  to  the  present.  The  plaintiff  there  was  a  member  of  the 
firm  of  Bates  &,  Thaxter,  which  firm  was  taxed  as  such. 


51 


There  was  certain  property  of  which  his  wife  was  entitled  to 
the  income,  and  for  which  he  was  taxed.  He  contended  that 
this  was  not  taxable,  and  brought  a  suit  to  recover  the  tax 
back.  But  the  Court  held,  that,  as  he  had  some  personal 
property  liable  to  taxation,  other  than  his  partnership  prop¬ 
erty,  and  as  the  whole  tax  Avas  set  to  him,  as  for  his  personal 
property,  it  was  therefore,  if  wrong,  obviously  a  case  of  over¬ 
valuation,  for  which  his  only  remedy  was  by  appeal. 

Applying  these  principles  to  the  present  case,  it  is  obvious 
that  the  tax  must  stand,  even  on  the  plaintiff’s  own  ground, 
because  a  portion  of  it  was  taxable  to  the  plaintiff,  and  if  it 
was  too  large,  the  remedy  was  by  appeal.  Besides,  it  is  a  mere 
technical  ground,  and  not  to  be  favored.  Suppose  the  tax 
bill  ought  to  have  been  made  out  in  the  name  of  Miss  Thorn¬ 
dike  instead  of  the  name  of  the  plaintiff,  it  was  clear  that  he 
held  her  property  as  trustee,  and  he  would  pay  the  tax.  He 
never  before  made  any  objection  to  the  form  of  it  or  it  would 
have  been  changed  at  once  ;  and  now  the  objection  was 
merely  technical  and  formal,  and  did  not  affect  the  legality 
of  the  tax  in  the  least. 

Mr.  Chandler  remarked,  that  the  tax  bills  which  were 
actually  paid,  were  lost.  The  bills  put  in,  were  taken  by  the 
assessors  from  their  books  ;  and  were  not  copied  from  the 
originals. 

Mr.  Welch.  I  recollect  that  these  are  like  the  bills  that 
are  lost. 

Mr.  Chandler.  I  would  suggest  that  it  would  be  the 
more  convenient  ruling,  to  rule  this  point  in  favor  of  the  de¬ 
fendant.  In  that  case,  if  the  verdict  should  be  rendered  for 
the  defendants,  and  the  whole  bench  should  think  the  ruling 
incorrect  upon  this  point,  the  plaintiff  might  have  judgment 
for  the  amount  of  the  tax  assessed  upon  him  as  trustee  for 
Miss  Thorndike,  without  having  a  new  trial  upon  the  whole 
question.  But  if  the  ruling  should  be  in  favor  of  the  plain¬ 
tiff,  and  should  be  reversed  t»y  the  full  bench,  we  should  be 
obliged  to  try  the  whole  case  over  again. 

The  Court.  My  impression  is,  that  in  Lincoln  v.  Worcester , 


52 


a  case  which  was  decided  last  October,  and  is  not  yet  reported, 
there  was  a  tax  to  the  plaintiff  as  trustee,  and  the  Court  took 
the  ground  now  taken  by  the  defendants’  counsel.  They 
held  that  it  was  a  question  of  over- valuation. 

Mr.  Welch.  The  present  case  is  different.  Here  it  ap¬ 
pears  on  the  very  face  of  this  judicial  act  of  the  assessors,  if 
it  may  be  so  called,  that  there  has  been  an  error. 

The  Court.  In  the  case  of  Bates  v.  Boston,  there  was 
no  difficulty  as  to  the  person  taxed.  The  only  difficulty  in 
the  present  case  is,  as  to  the  person  to  be  taxed. 

Mr.  Chandler.  Precisely  the  same  argument  was  used  in 
the  case  of  Bates  v.  Boston.  Suppose  Mr.  Bourne  had  been 
taxed  as  guardian,  and  the  word  trustee  had  been  omitted  ? 

The  Court.  There  would  have  then  been  no  difficulty. 

Mr.  Chandler.  The  whole  tax  should  not  be  avoided  for 
a  technical  inaccuracy. 

The  Court. — It  has  been  decided  that  inaccuracy  in  de¬ 
scription  shall  not  avoid  a  tax.  But  when  there  is  an  uncer¬ 
tainty  as  to  the  person  to  be  taxed,  a  different  question  is 
presented.  I  do  not  wish  to  anticipate  what  the  counsel  for 
the  plaintiff  may  say,  but  merely  to  suggest  the  difficulty 
which  arises  in  my  own  mind. 

Mr.  Welch. — Your  honor  has  stated  it  much  better  than  I 
could. 

Mr.  Chandler. — It  would  be  more  convenient  to  rule  pro 
forma  for  the  defendants  on  this  point,  if  indeed  the  Court  has 
any  doubt  upon  it. 

The  Court. — My  impression  is,  that  the  case  of  Lincoln 
v.  Worcester  decides  this  point  in  favor  of  the  defendants. 

Mr.  Chandler  then  called  as  a  witness 

Pamelia  Sprague. — I  reside  at  Charles  P.  Curtis’s,  in  Mt. 
Vernon  street,  Boston.  I  am  his  cook.  I  have  lived  in  his  fam¬ 
ily  about  20  years  altogether.  1  went  to  live  with  Mr.  Bourne, 
in  Pemberton  square,  in  the  first  part  of  December,  1S49.  I 
staid  through  the  winter.  I  was  engaged  to  stay  through  the 
summer,  if  I  could,  and  keep  the  house  open.  I  had  another 


53 


woman  with  me.  I  kept  the  house  open  till  about  the  mid¬ 
dle  of  July.  I  lost  a  relative,  and  had  to  go  home.  Mr. 
Bourne  was  at  home  himself  a  part  of  the  time  ;  I  think 
about  a  fortnight  at  a  time.  I  could  not  tell  exactly.  Mr. 
Bourne  told  me  he  should  be  at  home  a  part  of  the  time.  It 
was  said,  when  I  was  engaged,  that  the  family  would  be  up 
some  of  the  time  ;  that  Mrs.  Bourne  would. 

C ross-examined. — Mr.  Bourne,  at  one  time,  was  there  about 
a  fortnight.  I  could  not  recollect  exactly  what  month.  1 
think  it  was  the  first  part  of  the  time.  Mr.  and  Mrs.  Bourne 
went  to  Newport  in  the  spring.  They  wanted  me  to  keep 
the  house  in  such  order,  that  if  any  of  the  family  came  to 
Boston  they  would  have  a  place  to  stop. 

Mr.  Welch  then  called  the  following  witnesses  for  the 
plaintiff : — 

Ira  Martin. — I  was  in  Mr.  Bourne’s  employ  in  184S  and 
1849. 

Mr.  Chandler. — What  is  the  object  of  this  testimony  ? 

Mr.  Sohier. — The  defendant  has  shown  that  the  house 
was  open  in  1850  and  1851.  We  wish  to  show  that  precisely 
the  same  thing  was  done  in  1848  and  1849. 

Mr.  Chandler. — I  feel  inclined  to  have  the  fact  in  ;  but  I 
think  the  principle  is  a  bad  one.  I  have  been  rebutting  their 
testimony.  They  admitted  that  Mr.  Bourne  kept  the  house 
open.  I  merely  showed  how  and  why  it  was  done. 

Mr.  Sohier. — They  try  to  show  that  Mr.  Bourne  gained  a 
new  residence  in  Boston  in  1850.  I  wish  to  show  that  he  did 
nothing  more  than  in  1848  and  1849. 

The  Court. — The  only  question  is,  whether  this  is  new 
matter  or  not. 

Mr.  Sohier. — They  admitted  that  Mr.  Bourne  had  a  resi¬ 
dence  in  Brookline,  and  they  try  to  show  that  he  gained  a 
new  residence  in  Boston. 

Mr.  Chandler. — The  point  is  this,  no  new  matter  was  put 
in  by  the  defendants.  The  plaintiff  put  in  the  fact  of  keep¬ 
ing  the  house  open. 


0 


54 

The  Court. — You  put  in  evidence  to  show  that  it  was  kept 
open  for  a  different  purpose.  I  shall  admit  the  testimony,  if 
insisted  on. 

Mr.  Sohier. — Rather  than  have  any  question  raised,  I  will 
waive  it. 

Margaret  Low. — I  lived  in  Mr.  Bourne’s  family  in  1S51, 
and  some  time  previous. 

Mr.  Welch. — Did  you  go  down  to  Newport  in  June, 
1851  ? 

Mr.  Chandler. — I  object  to  the  testimony,  as  not  rebut¬ 
ting. 

Mr.  Welch. — We  intend  to  prove,  by  this  witness,  that 
she  found  that  the  house  had  been  inhabited,  that  the  beds 
were  not  made,  and  that  they  found  there  the  remains  of  a 
breakfast. 

Mr.  Chandler. — If  that  is  the  extent,  I  admit  it.  Go 
ahead  ;  I  don’t  object. 

Witness. — I  was  at  Newport  in  1850.  The  house  was 
shut  up  quite  late,  and  I  was  not  the  last  one  who  was  there. 
It  was  put  in  some  order  when  I  left.  I  went  down  in  June, 
1851.  I  went  down  with  a  woman  who  was  engaged  for 
that  purpose.  I  opened  the  house,  and  engaged  a  colored 
woman.  The  house  looked  as  if  it  had  been  inhabited  a  short 
time  before  I  went  down.  I  remained  there  until  August. 

Cross-examined. — In  June  I  found  the  house  locked  up. 
I  opened  it.  I  think  I  had  the  key  with  me,  but  can’t 
remember.  I  found  the  remains  of  a  meal  in  the  dining 
room,  which  had  not  been  cleared  away.  I  have  lived  Avith 
Mr.  Bourne  about  16  years.  One  of  the  daughters  was  mar¬ 
ried  at  Newport  that  summer.  She  Avas  married  at  church. 
I  suppose  she  Avent  from  Mrs.  Tirrell’s.  I  suppose  she  had 
been  staying  at  Mrs.  Tirrell’s  from  the  19th  of  June.  She 
had  not  been  staying  at  the  small  house  on  Kay  street.  I 
did  not  remark  that  it  would  not  do  for  Mr.  Bourne  to  go  to 
Boston,  or  he  would  have  to  pay  taxes.  I  don’t  think  I 
ever  made  a  remark  upon  it. 


55 


Mary  Coughlan  was  recalled  by  the  defendants’  counsel. 

Mr.  Chandler. — Did  the  last  witness  state  to  you  any¬ 
thing  about  Mr.  Bourne’s  taxes  in  1851  ? 

Mr.  Sohier. — I  object  to  the  question. 

The  Court. — It  is  incompetent.  The  question  put  to  the 
last  witness  was  purely  collateral. 

Mr.  Chandler  closed  the  case  for  the  defendants,  substan¬ 
tially  as  follows  : — 

Every  thing  in  art  and  nature,  he  said,  had  certain  specific 
and  distinctive  characteristics  which  distinguish  it  from  every 
other  thing,  and  which  stand  out  in  such  bold  relief  that  the 
mind  is  impressed  with  its  general  quality,  without  reference 
to  the  details  which  produce  the  effect.  We  say  of  a  picture 
that  it  is  pleasing,  without  the  least  knowledge  of  the  rules 
of  art,  and  perhaps  with  an  entire  inability  to  point  out  the 
reasons  for  the  impression  left  on  the  mind.  We  admire  cer¬ 
tain  countenances ;  we  pronounce  them  beautiful  without 
reflecting  upon  the  reasons  of  our  judgment.  So  of  certain 
transactions  ;  we  are  painfully  or  otherwise  affected  by  them, 
according  to  the  general  impression  which  they  leave ;  we  do 
not  stop  to  analyze  them  carefully,  but  we  praise  them  or  we 
denounce  them  as  they  appear  to  us  as  a  whole.  So  of  legal 
controversies.  After  wading  through  a  mass  of  evidence  un¬ 
til  the  mind  is  weary,  and  many  of  the  details  of  proof  are 
dimly  remembered — perhaps  forgotten  entirely — we  get  a  dis¬ 
tinct  impression  of  the  whole  matter  without  being  able  to 
recall  at  once  the  reasons  for  such  a  result  or  readily  to  defend 
it.  We  take  a  comprehensive  view  of  the  whole  thing.  We 
are  strongly  impressed  with  certain  prominent  facts,  which 
stand  out  in  bold  relief,  and  throw  a  shadow  upon  the  minor 
details  of  the  picture.  We  unhesitatingly  arrive  at  certain 
conclusions  ;  we  exclaim  that  it  is  a  fair,  honorable,  and  just 
claim,  one  that  ought  to  be  enforced  ;  or  perhaps  we  de¬ 
nounce  it  as  an  unjust,  dishonorable,  possibly  a  mean  cause, 
and  one  that  ought  not  in  good  conscience  to  succeed, 
although  the  technical  rules  of  law  may  be  in  its  favor. 

Regarding  the  present  case,  as  it  now  stood,  upon  the  whole 


56 


evidence,  what  impression  had  it  made  upon  the  minds  of  the 
jury  ?  Did  it  strike  them  as  a  claim  which  ought  to  succeed  ; 
which,  upon  the  plaintiff’s  own  showing,  was  entitled  to  fa¬ 
vor;  or  did  it  seem  to  them  like  a  claim  which  was  entitled 
to  no  favor  whatever,  and  one  which  ought  not  to  succeed, 
unless  the  strict  rules  of  law  gave  it  a  title  to  success. 

Before  examining  the  details  of  the  evidence,  he  desired  the 
jury  to  look  at  the  broad  features  of  the  case  ;  to  consider 
certain  facts  which  were  not  in  dispute  on  either  side. 

In  1S51  the  authorities  of  the  City  of  Boston  declared  that 
the  plaintiff’s  proportion  of  the  municipal  burthens  of  that 
year  was  $3,571.50;  and  they  ordered  him  to  pay  that 
amount  for  his  own  personal  tax,  and  for  the  tax  on  certain 
property  owned  by  his  wife  and  by  her  daughters,  of  which  he 
had  the  custody.  The  plaintiff  paid  this  amount,  and  has 
brought  this  suit  to  recover  it  back,  on  the  ground  that  he 
was  not  liable  to  be  taxed  at  all  in  Boston  on  his  personal 
property,  nor  for  that  held  by  him  in  trust,  because  he  says 
he  was  not  a  citizen  of  Boston,  and  consequently  not  liable 
to  taxation  there. 

This  sum,  if  recovered  by  the  plaintiff,  is  to  be  made  up 
by  the  other  tax-payers  of  Boston.  Their  rates  in  the  coming 
year  must  be  increased  sufficiently  to  cover  this  amount;  and 
the  question  here  is  really  one  between  him  and  them. 

It  was  not  denied  that  the  plaintiff  and  his  family  were 
very  wealthy.  It  appeared  that  he  was  trustee  of  the  prop¬ 
erty  owned  by  his  wife  and  by  some  of  her  daughters,  and 
guardian  of  those  who  were  under  age.  On  April  22,  1850, 
he  paid  over  to  one  of  these  daughters  $105,901.01,  as  her 
individual  share.  The  other  daughters  and  the  wife  had  each 
at  least  an  equal  amount,  and  it  was  clear  that  there  was 
more  than  half  a  million  of  personal  property  which  ought 
to  be  taxed  somewhere.  Property,  too,  which  was  extremely 
well  invested,  and  yielded  a  very  large  and  certain  income. 
This  property  was  almost  entirely  invested  in  this  Common¬ 
wealth,  and  most  of  it  in  corporations  doing  business  in  the 
city  of  Boston.  It  was  protected  by  Massachusetts  legisla- 


O  i 


tion.  The  expenditures  for  municipal  purposes  were  for  the 
benefit  of  the  plaintiff  in  proportion  to  his  large  estate. 
While  he  slept,  the  watchful  guardian  of  the  night  protected 
his  property.  At  any  lawless  aggression  upon  his  person  or 
upon  his  rights,  the  whole  power  of  the  city,  civil  and  mili¬ 
tary,  would  be  instantly  brought  to  his  aid.  For  him  the  po¬ 
liceman  made  his  hourly  round.  For  him  the  firemen  was 
ready  at  a  moment’s  warning,  to  toil,  to  struggle,  and  per¬ 
haps  to  die.  He  had  all  the  rights,  immunities,  and  privileges 
of  every  other  citizen,  and  he  makes  no  complaint  that  the 
public  authorities  have  not  done  their  whole  duty  so  far  as 
the  protection  of  himself  and  of  his  property  are  concerned. 

What  would  the  insurance,  bank,  and  other  stocks  of  Mr. 
Bourne  be  worth  if  there  were  no  watch,  no  police,  no  fire 
department,  no  city  government  ?  Why,  if  these  institutions 
were  blotted  from  existence,  the  plaintiff  would  go  from  this 
court  house  comparatively  a  poor  man. 

So  also  of  the  public  schools.  The  plaintiff  sends  no 
children  to  them.  Personally,  he  and  his  family  have  never 
used  them,  perhaps.  But  they  exist  nevertheless,  for  his  and 
their  benefit.  All  property — all  personal  property — depends 
entirely  upon  the  laws  for  its  protection.  The  laws  are  but 
the  will  of  the  people,  expressed  in  an  organized  form ;  and 
what  security  is  there  to  wealth — upon  what  basis  does  prop¬ 
erty  rest,  where  knowledge  is  not  generally  diffused?  where 
the  wildest  theories  are  the  current  coin  ;  where  lust  is  un¬ 
controlled  ;  where  every  wicked  passion  rages  with  fury,  un¬ 
restrained  by  the  light  of  truth  or  the  fear  of  God  ?  The 
New  England  school-house  is  the  real  protector  of  property, 
and  every  child  who  leaves  its  walls  is  ready  to  guard  the 
rights  of  others  as  well  as  to  protect  his  own. 

It  is  admitted  that  the  plaintiff,  with  his  accomplished  and 
amiable  family,  passes  all  his  winters  in  Boston.  Here  is  his 
home.  Whatever  technical  arguments  may  be  made,  or  nice 
distinctions  drawn  upon  the  question  of  domicil,  it  is  impos¬ 
sible  not  to  see  that  Boston  was,  and  is,  in  reality,  the  home 
of  this  family.  Here  were  the  plaintiff’s  friends.  Here  he 
entertains  in  a  style  of  liberal  and  generous  hospitality ;  and 


8 


58 


to  the  order,  cleanliness,  and  good  repute  of  Boston,  he 
and  the  ladies  whom  he  represents  in  this  matter,  were  as 
much  indebted  as  any  other  persons  living. 

Now,  there  is  no  pretence  here  that  the  plaintiff  has  been 
taxed  more  than  his  proportionate  share  for  all  these  pur¬ 
poses.  If  he  were  so  taxed,  he  had  a  plain  and  adequate 
remedy  for  such  over-valuation.  But  he  contends  that  he  is 
not  liable  at  all.  He  complains  that  any  tax  is  assessed  upon 
the  personal  property  owned  and  represented  by  him.  Why 
should  he  complain?  The  whole  tax  paid  by  this  family 
in  four  years  in  Brookline  and  Newport,  was  $575.  Their  just 
tax  in  Boston  for  the  same  years  would  have  been  more  than 
$12,000  !  The  plaintiff’s  tax  in  Boston  in  1851,  (and,  as  be¬ 
fore  stated,  it  was  a  just  and  reasonable  tax,  in  proportion  to 
his  property,)  was  $3,571.50.  The  Newport  tax,  which  the 
plaintiff  contended  was  the  only  tax  he  ought  to  pay,  was 
$S7 ! 

Now  then,  the  question  is,  can  the  plaintiff  recover  this 
sum  back  ?  Can  he  thus  escape  taxation  ?  Can  such  mon¬ 
strous  injustice  be  worked  under  our  laws  ?  Is  it  possible  for 
a  citizen,  whose  proportionate  and  just  tax  is  $3,571.50,  to 
get  off  legally  by  paying  one  of  $87  ?  Can  he  have  all  the 
advantages  of  our  laws,  of  our  municipal  regulations  and  ex¬ 
penditures,  and  not  share  in  the  common  burthens ;  but  com¬ 
pel  other  citizens  exclusively  to  pay  for  what  he  enjoyed  in 
common  with  them  ? 

The  defendants  denied  that  this  could  be  done.  The  City 
of  Boston  took  issue  on  this  point,  and  contended  that  neither 
in  law  or  in  equity,  in  good  conscience  or  in  good  sense,  was 
there  any  ground  upon  which  the  plaintiff’  could  rest  his 
cause. 

The  defendant  corporation  met  the  plaintiff  on  his  own 
ground ;  in  his  own  forum.  He  had  come  into  this  county, 
at  great  inconvenience  to  himself,  and  to  his  counsel,  and  to 
his  witnesses.  Why  did  he  come  here  ?  Did  it  seem  absurd 
to  him,  who  is  as  well  known  in  Boston  as  any  citizen  there, 
to  go  before  a  jury  of  his  neighbors  and  deny  that  he  was  a 
a  citizen,  and  try  to  convince  them  that  they  were  all  in  an 


59 


error  on  this  point  ?  Or  did  he  suppose  that  he  stood  better 
here,  from  the  natural  prejudice  in  the  minds  of  a  Norfolk 
jury,  on  this  question  of  taxation  ?  Did  it  occur  to  him  as  a 
reason  for  coming  here,  that  the  towns  in  this  county  have 
an  advantage  from  persons  leaving  Boston  to  avoid  tax¬ 
ation,  and  therefore  would  be  more  favorable  to  his  cause  ? 
If  he  did  reckon  on  any  thing  of  this  sort,  he  reck¬ 
oned  without  his  host !  A  Norfolk  jury  would  try  this 
case  as  fairly  as  any  jury  on  earth.  The  inhabitants  of 
this  county,  like  those  of  every  county  in  the  state,  hate 
meanness,  or  evasion  of  the  law,  whenever  and  wherever  they 
find  it.  They  believe  in  equality ;  that  every  man  ought  to 
be  taxed  his  proportionate  part  of  the  common  burthens 
of  society.  The  question  here  was  not  whether  the  plain¬ 
tiff  should  be  taxed  in  Boston  or  in  Norfolk,  but  whether 
he  should  be  taxed  at  all.  The  question  was,  whether  Mas¬ 
sachusetts  men  could  go  out  of  the  state  nominally,  and  live 
here  really,  and  yet  avoid  taxation  here  altogether. 

To  that  question  he  addressed  himself,  and  in  reviewing 
the  evidence,  he  should  treat  the  whole  matter  with  great 
plainness  of  speech.  He  should  try  this  case  precisely  as  if 
the  plaintiff  were  the  humblest  citizen  in  the  community,  and 
where  he  alleged  fraud,  and  proved  fraud,  he  would  call  it 
fraud,  and  nothing  else. 

The  only  question  of  fact  for  the  jury  to  pass  upon  was  as 
to  the  domicilj  of  the  plaintiff  on  May  1st,  1852.  Was  it  in 
Boston,  or  in  Newport,  R.  I.  ? 

The  law  required  that  a  person  should  be  taxed  for  his  per¬ 
sonal  property  “  in  the  town  where  he  shall  be  an  inhabitant 
on  the  first  day  of  May.” 

In  the  first  place,  then,  it  was  necessary  to  understand  what 
was  meant  by  the  term  habitancy  ?  The  meaning  was  simply 
a  person’s  home  ;  and  a  person  could  have  but  one  home. 
He  might  have  several  residences,  but  he  could  have  but  one 
domicil  for  purposes  of  taxation ;  and  this  was  defined  in  the 
law  as  his  habitation  fixed  in  any  place,  without  any  present 
intention  of  removing  therefrom.  It  had  also  been  repeat¬ 
edly  decided,  that  if  a  person  go  out  of  the  state,  or  county 


60 


or  town,  for  a  particular  purpose,  and  do  not  take  up  a  perma¬ 
nent  residence  elsewhere,  he  cannot  be  considered  as  having 
removed  so  as  to  affect  his  domicil  or  inhabitancy.  The  in¬ 
tention  to  abandon  a  domicil,  and  actual  residence  at  another 
place,  if  not  accompanied  with  the  intention  of  remaining 
there  permanently,  or  at  least  for  an  indefinite  time,  would 
not  produce  a  change  of  domicil.  Persons  who  went  from 
home  for  specific  purposes,  travellers,  seamen,  members  of 
Congress,  the  President  of  the  United  States,  did  not  lose 
their  domicil.  Mr.  Webster  for  many  years  occupied  a  house 
in  Washington,  but  his  home  was  in  Marshfield.  There  he 
was  taxed,  and  there  he  exercised  his  municipal  and  political 
rights.  The  case  of  Sears  v.  City  of  Boston  (1  Metcalf  :s 
Reports,  250)  was  directly  in  point.  The  plaintiff  left  Bos¬ 
ton  to  be  absent  several  years  in  a  foreign  country.  He  leased 
his  house  in  Boston  ;  but  the  Court  held  that  his  domicil 
continued  there,  and  that  he  was  taxable  there,  because  he 
had  not  abandoned  the  city,  but  was  absent  for  a  temporary 
purpose,  and  intended  to  return. 

In  the  present  case,  if  the  plaintiff,  having  his  home  in 
Boston,  made  annual  visits  to  Newport,  but  intending  to  re¬ 
turn  in  the  autumn,  this  was  not  a  change  of  domicil. 

Upon  this  view  of  the  law,  it  was  perfectly  safe  to  admit 
all  that  the  plaintiff  had  proved  ;  and  still  he  was  not  entitled 
to  recover  in  this  action.  He  was  at  great  pains  to  prove 
that  he  was  at  Newport  on  May  1st,  with  his  wife.  Suppose 
he  was  ;  that  alone  did  not  make  him  a  citizen  there.  The 
great  question  was,  where  was  his  home  ?  This  was,  in  one 
sense,  a  complex  term.  It  was  not  merely  where  a  man,  or 
his  wife,  or  even  the  whole  family,  happened  to  be  on  a  par¬ 
ticular  day,  that  constituted  the  domicil.  It  was  that  large 
variety  of  considerations,  facts,  and  circumstances,  concurring 
to  make  up  that  endearing  appellation,  which  no  other  lan¬ 
guage  had  any  word  to  express  in  its  full  significance  ; 
what  we  understand  by  the  term — home.  Not  alone  did 
the  head  of  the  family  compose  it.  The  hearth-stone, 
around  which  infancy  had  sported,  and  old  age  had  sat  in 
peace  ;  the  library,  the  pictures,  the  furniture — familiar,  old, 
and  yet  so  dear — the  servants ;  were  these  no  part  of  the  dom- 


61 


icil  ?  The  plaintiff  did  himself  and  the  rest  of  his  household 
great  injustice,  and  unconsciously  abused  the  term,  when  he 
supposed,  that,  by  merely  transporting  himself,  he  changed 
the  home  of  his  family. 


Here  woman  reigns :  the  mother,  daughter,  wife  ! 

A  great  deal  had  been  said  as  to  a  man’s  right  to  live  where 
he  pleased.  There  was  no  doubt  of  that,  whatever.  A  man 
may  change  his  home  as  often  as  he  desires  ;  he  may  make 
his  home  in  France,  Tartary,  or  Hindostan.  But  he  must 
act  in  good  faith.  He  must  not  pretend  to  go  there,  and,  in 
point  of  fact,  remain  here.  He  cannot  have  all  the  advan¬ 
tages  of  a  home  in  one  place,  and,  at  the  same  time,  by  his 
mere  will,  escape  the  public  burthens  which  contribute  to 
render  that  home  agreeable. 

The  great  question  in  the  case  was  this  :  Was  the  home  of 
this  plaintiff  on  the  first  day  of  May,  1851,  in  his  house  on 
Pemberton  square — that  stately  mansion,  fitted  up  in  a  style 
of  luxurious  magnificence,  suitable  to  his  position,  in  which 
he  and  his  family  had  resided  for  so  many  years,  and  which 
was  never  closed,  summer  or  winter — or  was  it  in  the  “small 
house  on  Kay  street,”  as  he  described  it  in  his  letter  to  the 
assessors  of  Newport,  “  next  the  Jews’  burying  ground,”  as 
Mrs.  Tirrell  speaks  of  it,  hired  of  Mrs.  Engs,  at  a  rent  of  $200 
per  annum,  which  was  never  occupied  except  in  the  summer 
months,  and  was  closed  and  utterly  abandoned  the  rest  of  the 
year  ? 

The  plaintiff  averred,*  and  asked  for  a  verdict  upon  the 
ground,  that  the  latter  residence  was  his  home  instead  of  the 
former,  and  he  offered  evidence  on  this  point  which  it  was 
necessary  to  examine. 

First,  we  had  the  testimony  of  the  Newport  assessors  that 
they  taxed  the  plaintiff  in  1850  and  1851.  But  this  was  not 
of  the  least  consequence,  because  their  time  of  taxation  was 
in  August,  and  there  was  nothing  to  show  that  mere  resi¬ 
dence  in  Rhode  Island,  whether  they  have  a  fixed  domicil 
there  or  not,  was  not  sufficient  for  purposes  of  taxation.  It 


might  therefore  have  been  that  he  was  taxable  here  and 
there  too,  an  inconvenience  that  persons  who  undertake  to 
reside  in  different  states  often  suffer.  Besides,  it  is  quite 
noticeable,  that  the  assessors  speak  of  the  plaintiff’s  request¬ 
ing  to  be  taxed  there. 

Then  we  had  the  testimony  of  Mr.  James  Hammond  that 
he  saw  Mr.  Bourne  and  “  one  other  member  of  his  family”  in 
Newport  on  May  1st,  1851.  “They  paid  me  a  pretty  long 
visit  at  my  store,”  he  said.  He  gave  no  reason  whatever, 
why  they  were  at  his  store,  or  how  he  came  to  remember  it 
so  distinctly.  But  it  would  be  very  safe  to  admit  that  he 
was  correct,  and  that  the  plaintiff  and  “  one  other  member  of 
his  family”  were  at  Newport  on  that  day,  and  did  pay  Mr. 
Hammond  “  a  pretty  long  visit  at  his  store.”  Indeed,  the 
next  witness  seemed  to  settle  that  point  conclusively,  and  to 
her  own  satisfaction  at  least. 

This  witness  was  Mrs.  Tirrell,  Mrs.  Adeline  Tirrell ;  and 
her  testimony  was  so  singular  and  suggestive  that  it  must  re¬ 
ceive  a  moment’s  consideration.  Mrs.  Tirrell,  who  is  the 
sister  of  Mrs.  Bourne,  testifies  that  she  dined  with  the  plain¬ 
tiff  and  his  wife  on  that  day  at  his  house  in  Newport.  She 
recollects  it  “  because  it  was  May-day.”  There  was  some¬ 
thing  a  little  singular  in  this  matter  of  the  dinner  in  more 
respects  than  one.  In  the  first  place  Mr.  and  Mrs.  Bourne 
left  Boston  on  the  very  last  or  last  day  but  one  in  April. 
They  took  no  servant  with  them.  The  Newport  house  had 
been  closed  all  winter.  Mrs.  Tirrell  was  living  in  Newport ; 
and  as  it  was  not  usual  to  invite  persons  to  dinner  on  the 
very  day  of  opening  a  house  for  the  season,  it  seemed  strange 
that  Mrs.  Tirrell  did  not  invite  her  sister  to  dine  with  her. 
Probably  this  arrangement,  however,  would  not  suit  the  plain¬ 
tiff’s  purpose  in  going  to  Newport  on  that  day.  It  might  be 
desirable  to  establish  the  fact  that  he  was  actually  in  his 
own  house  on  that  day.  But  there  was  another  difficulty  ! 
Who  cooked  the  dinner  in  the  plaintiff’s  house  on  that  day? 
He  took  no  servants  with  him.  His  Newport  cook  did  not 
go  down  from  Boston  until  six  weeks  afterwards.  When  she 
arrived  the  house  was  closed,  and  had  the  appearance  of 


63 


having  been  closed  a  long  time.  Who  cooked  that  dinner  ? 
It  would  be  easy  for  the  plaintiff  to  show  it.  Why  had  he 
not  done  so  ? 

He  (Mr.  C.)  Avas  not  disposed  to  deny  Mrs.  Tirrell’s  state¬ 
ment  that  she  dined  in  the  plaintiff’s  house  on  that  first  day 
of  May.  Nor  did  he  doubt  that  she  took  her  cook  with  her  ! 
For  this  whole  affair,  as  Avell  as  the  u  pretty  long  visit”  at 
Mr.  Hammond’s  store,  was  doubtless  got  up  for  the  occasion. 
The  plaintiff  had  a  case  to  make  out.  He  desired  evidence 
that  he  Avas  in  Newport  on  May  1st,  and  that  he  Avas  living 
at  his  own  house.  He  invited  company  to  dinner  for  this 
very  purpose,  and  then  he  actually  brings  that  company  to 
testify  to  these  facts. 

By  all  means  admit  the  fact  of  the  dinner.  It  Avas  an  oc¬ 
casion  to  be  remembered — that  social  re-union  in  a  cold,  dis¬ 
ordered  house,  on  that  bleak  shore — that  dinner  in  the 
“small  house  on  Kay  street,”  “next  the  Jewish  synagogue 
and  burying  ground,”  it  Avas  not  in  the  least  strange  that  the 
Avitness  remembered  it  so  well.  Probably  the  plaintiff  him¬ 
self  Avould  not  soon  forget  that  May-day,  1851. 

Old  men  forget ;  jet  all  shall  he  forgot, 

But  he’ll  remember,  with  advantages, 

AVhat  feats  he  did  that  day! 


So  much  for  the  NeAvport  Avitnesses.  We  next  had  the 
testimony  of  Mrs.  Rice  as  to  the  state  of  things  in  the  house 
in  Pemberton  Square.  He  approached  this  Avitness  Avith 
some  reluctance,  because  her  relation  to  the  party  placed  her 
in  an  embarrassing  position,  and  ought  to  protect  her  from 
any  remarks  not  strongly  called  for.  But  the  defendants  did 
not  place  her  in  the  position  of  a  Avitness.  She  Avas  called 
by  her  step-father,  and  to  prove  facts  Avhich  he  might  just  as 
well  have  proved  by  others ;  because  anything  she  knew, 
was  knoAvn  by  others  Avho  might  have  been  called  by  him. 
And  it  Avas  a  singular  fact,  that  the  defendants  called  the  very 
Avitnesses  Avhich  the  plaintiff  would  naturally  have  called,  if 
he  had  not  feared  their  testimony. 

Mrs.  Rice  says  that  she  came  to  Boston  the  last  of  April, 


64 


1851  ;  and  she  states  the  reason  why  she  came.  Was  that 
object  one  that  would  be  likely  to  drive  her  mother  away, 
almost  as  soon  as  she  came  home  ?  Was  it  credible  that  the 
sole  object  of  Mrs.  Rice  in  coming  here  was  to  be  under  Dr. 
Warren’s  care  ?  Was  it  not  much  more  reasonable  to  sup¬ 
pose  that  she  desired,  at  that  most  trying  period  of  her  life, 
to  be  with  her  mother  ?  and  yet  she  would  have  us  believe, 
that,  although  she  arrived  here  the  last  of  April,  her  father 
and  mother  immediately  changed  their  residence  to  another 
state,  and  that  this  mansion  in  Pemberton  Square  was  given 
into  her  hands  at  a  time  when  her  mind  must  have  been 
occupied  with  thoughts  and  considerations  utterly  inconsist¬ 
ent  with  the  management  of  this  great  establishment.  There 
was  something  singular,  too,  in  the  way  this  witness  speaks 
of  the  family  mansion.  She  says,  “  I  staid  at  my  mother’s 
house,  No.  19  Pemberton  Square.”  Her  mother’s  house  ! 
True,  but  was  it  not  also  her  father’s  house  ?  Would  she 
have  us  infer  that  he  had  no  right  there  ?  that  he  was  merely 
a  visitor  there  ?  This  was  obviously  her  intention,  because 
in  answer  to  the  question,  whether,  when  Mr.  Bourne  was 
in  Boston,  he  lived  at  the  house  in  Pemberton  Square ;  her 
answer  was  in  these  words,  “  He  stopped  there.”  Indeed! 
But  what  was  the  meaning  of  this  excessively  cautious  man¬ 
ner  of  stating  simple  facts.  One  would  almost  suppose  from 
Mrs.  Rice’s  evidence,  that  Mr.  Bourne  was  at  most  but  a 
visitor  at  “  her  mother’s  house,”  a  sort  of  day  boarder  ;  or 
that  he  “  stopped  there”  as  he  would  at  an  inn.  Indeed  the 
expressions  used  by  this  witness,  and  the  whole  evidence  on 
the  part  of  the  plaintiff  in  relation  to  his  peregrinations  at 
Newport  and  elsewhere  during  that  eventful  summer,  in 
search  of  taxation,  recalled  those  fine  lines  of  an  old  poet,  as 
peculiarly  applicable  to  his  circumstances  : — 

Whoe’er  has  travelled  life’s  dull  round, 

Where  ’er  his  stages  may  have  been ; 

Must  sigh  to  think  he  always  found 

His  warmest  welcome  in  an  inn. 

So  much  for  Mrs.  Rice’s  testimony.  It  is  objectionable,  not 
so  much  for  what  she  states,  as  for  what  she  omits  to  state, 


65 


and  for  the  impressions  she  leaves  as  to  the  occupation  of  the 
house  in  Boston.  Great  pains  had  been  taken  to  show  that 
Mrs.  Rice  had  good  reasons  for  coming  to  Boston  at  that 
time.  The  counsel  on  the  other  side  had  explained  these  in 
his  opening,  and  almost  the  first  question  asked  of  the  wit¬ 
ness  by  the  other  counsel,  referred  to  these  reasons.  Doubt¬ 
less  her  reasons  were  good.  So  far  as  the  evidence  in  this 
case  went,  they  certainly  were.  But  they  did  not  alter  the 
facts  or  the  law.  Every  man  had  some  good  reason  for  liv¬ 
ing  in  one  place  rather  than  another.  The  fact  that  Dr. 
Warren  lived  in  Boston  induced  Mrs.  Rice  to  come  at  that 
time  ;  and  the  fact  that  she  desired  to  come  induced  the 
plaintiff  and  his  family  to  remain  there,  and  to  offer  her  a  home. 
The  fact  that  Mrs.  Rice  desired  the  services  of  Dr.  War¬ 
ren  did  not  fix  Mr.  Bourne’s  residence  in  Newport.  It  was 
very  proper,  doubtless,  that  she  should  come  ;  very  proper 
that  she  should  find  a  home  in  her  mother’s  house,  and  still 
more  proper  that  the  plaintiff  should  be  taxed  in  Boston  that 
year. 

Now  upon  this  point,  as  to  the  manner  in  which  the  Bos¬ 
ton  establishment  was  carried  on,  the  defendants  had  called 
a  number  of  witnesses,  and  they  were  the  very  persons  who 
knew  the  most  of  these  transactions.  They  had  produced 
the  plaintiff’s  grocer,  his  provision  dealer,  his  milk-man,  his 
baker,  his  stabler,  his  Boston  cook,  his  Newport  cook,  and  his 
man  servant.  It  was  unnecessary  to  recapitulate  their  testi¬ 
mony.  It  was  uncontradicted,  and  it  was  too  plain  and  clear 
to  be  misunderstood.  It  appeared  that  Mr.  and  Mrs.  Bourne 
left,  the  last  of  April,  for  Newport  ;  that  they  or  one  of  them 
returned  to  Boston  immediately,  and  then  took  their  usual 
journey  south.  They  soon  returned  to  Boston,  and  Mrs. 
Bourne  certainly  was  there  for  several  weeks.  All  the  ser¬ 
vants  they  ever  had  were  in  the  house.  The  carriage  came 
often  to  the  door.  Every  thing  went  on  as  usual  until  the 
first  of  July,  when  this  family,  like  hundreds  of  others,  left 
the  city  during  the  warm  season.  Even  after  this  the  house 
was  kept  open  until  September,  when  the  whole  family  re¬ 
turned.  During  this  whole  period  the  house  bills  went  on  as 

9 


66 


usual,  and  all  were  paid  by  Mr.  Bourne.  No  servant  in  that 
house  ever  heard  that  there  was  any  change  in  the  head  of 
it.  Seven  domestics  were  there  under  Mrs.  Bourne,  and 
knew  no  other  mistress.  Mrs.  Rice  brought  one  servant  and 
hired  another  after  her  arrival ;  neither  of  whom  were  pro¬ 
duced  by  the  plaintiff.  No  one  who  supplied  the  establish¬ 
ment  had  anything  to  do  with  Mrs.  or  Mr.  Rice,  or  ever 
heard  of  them  as  keepers  of  this  house,  so  far  as  appears  in 
evidence.  As  to  the  intimation  that  the  house  was  in  charge 
of  the  servants  alone,  it  would  not  bear  the  least  examina¬ 
tion.  If  the  jury  would  look  at  the  grocer’s  account,  and 
examine  some  of  the  items,  it  would  put  this  intimation  at 
rest.  Was  it  Mr.  Bourne’s  habit  to  furnish  his  servants  with 
fine  Otard  brandy,  and  cases  of  claret,  and  articles  of  this 
description  ?  It  was  an  insult  to  common  sense  for  the  plain¬ 
tiff  to  ask  the  jury  to  believe  that  he  had  given  this  house  up 
to  Mrs.  Rice,  and  that  it  was  her  house  during  this  summer, 
and  not  his.  It  was  a  case  not  uncommon,  of  a  lady’s  com¬ 
ing  home  to  make  a  visit  under  peculiar  circumstances,  and 
just  those  circumstances  which  would  keep  her  parents  at 
home  and  not  send  them  away — circumstances  utterly  incon¬ 
sistent  with  the  idea  of  her  assuming  the  cares  of  the  estab¬ 
lishment. 

Then  as  to  Newport,  the  defendants  had  produced  the 
cook,  who  went  there  and  opened  the  house  for  the  plaintiff. 
She  did  not  leave  Boston  till  about  the  middle  of  June. 
When  she  arrived  at  Newport,  the  house  was  closed.  It  was 
cold  and  damp,  and  in  great  disorder,  like  a  house  which  had 
not  been  occupied  for  a  long  time.  The  plaintiff  called  a 
witness  to  contradict  the  cook  on  an  immaterial  point,  but 
her  evidence  very  much  strengthened  the  defendants’  case  ; 
for  she  testified  that  when  they  opened  the  house,  they  found 
the  remains  of  a  meal  on  the  table,  which  shows  that  there 
could  have  been  no  regular  cook  in  the  house,  and  that  the 
May-day  dinner  was  a  hasty  affair,  there  not  being  time  to 
clean  up  after  it  was  over. 

Upon  this  evidence,  could  it  be  pretended  for  a  moment, 
that  the  domicil  of  the  plaintiff  was  not  in  Boston  on  May 


67 


1,  1851  ?  If  such  acts  as  these — such  sudden  migrations 
from  town  to  town  and  state  to  state  constituted  a  change  of 
domicil,  then  there  was  an  end  to  every  thing  like  fair,  equal 
and  just  taxation  in  this  Commonwealth  ;  a  man  might  elect 
his  place  of  taxation  and  still  reside  elsewhere  whenever  he 
pleased. 

But  the  case  did  not  stop  here.  The  arguments  thus  far 
had  been  confined  to  the  year  1851.  That  was  the  only 
year  now  in  controversy.  But  the  facts  in  the  case  tend 
strongly,  almost  conclusively,  to  show,  that  all  these  depar¬ 
tures  from  Boston  since  1847,  were  for  the  express  purpose 
of  evading  the  laws  respecting  taxation. 

Up  to  1847,  the  plaintiff  had  been  taxed  in  Boston. 
It  appeared  from  the  evidence,  that  prior  to  1846,  the  largest 
part  of  this  property  was  not  in  the  plaintiff’s  hands.  In 

1846,  Ebenezer  Francis,  the  trustee  of  Mrs.  Bourne’s  estate, 
resigned  at  her  request,  and  Mr.  Bourne  took  his  place.  In 

1847,  the  property  of  two  of  the  children  came  into  his 
hands,  and  in  1848  he  was  appointed  guardian  of  the  two 
others,  and  thus  the  whole  property  was  in  his  hands.  Now, 
the  first  year  that  he  sent  to  the  Brookline  assessors  request¬ 
ing  to  be  taxed  there,  was  this  very  year  1848,  and  where  in 
Brookline  did  he  go  ?  Why,  to  the  house  on  the  farm  of  Mr. 
Francis,  the  gentleman  who  had  been  the  trustee  of  Mrs. 
Bourne,  who  was  too  unwell  to  be  examined  here  as  a  wit¬ 
ness,  although,  fortunately,  able  to  be  about  his  business  in 
Boston.  He  was  taxed  there  two  years,  then  he  went  to  New¬ 
port.  Now,  one  significant  fact,  with  many  others  tending 
to  show  that  all  these  movements  were  made  with  special 
reference  to  taxation  and  to  that  alone,  was  that  he  was  con¬ 
stantly  writing  letters  to  the  various  assessors.  Some  fifteen 
days  before  he  moved  to  Brookline,  he  wrote  the  assessors 
there  a  letter  that  he  was  coming,  and  that  he  desired  to  be 
taxed  there  ;  and  the  first  year  he  went  to  Newport  he  wrote 
a  letter  to  the  assessors,  in  April,  although  their  time  for  tax¬ 
ation  was  not  until  July.  Every  year,  for  four  years,  he 
wrote  the  Boston  assessors  a  letter  that  he  was  going  out  of 
town.  Why  should  he  take  all  this  pains  ?  Do  men  ordina- 


68 


rily  take  so  much  trouble  ?  If  he  had  acquired,  or  if  he  in¬ 
tended  to  acquire  a  bona  fide  residence  in  another  town, 
would  he  take  all  these  precautions  ?  Nor  was  this  all.  In 
the  two  first  letters  to  the  Boston  assessors  he  told  them  he 
had  removed  to  “  his  house  in  Brookline.”  In  the  two  next, 
after  he  went  to  Newport,  he  said  not  a  word  of  the  place 
where  he  was  going.  “  I  shall  be  domiciliated ’,”  he  says, 
“  in  my  house  out  of  this  city ,  on  or  before  May  1,1851, 
where  I  shall  pay  all  taxes  upon  my  personal  property,  for 
the  future  as  heretofore.”  The  tax  in  Brookline  had  been 
raised  the  second  year.  Did  he  find  that  place  too  near  Bos¬ 
ton  ?  Did  he  desire  that  the  Boston  assessors  should  be  ig¬ 
norant  of  where  he  was  going  in  1S50  ? 

Then  let  it  not  be  forgotten,  that  during  all  these  years, 
his  house  was  open  the  whole  year  through.  He  resided  in 
it  every  winter,  and  “  stopped  there”  when  in  the  city,  He 
also  always  held  himself  out  as  “  of  Boston,”  in  legal  docu¬ 
ments — solemn  instruments,  whenever  he  deemed  it  for  his 
interest  so  to  do.  March  4.  1848,  we  find  “  Anna  D.  Thorn¬ 
dike  of  Boston,”  one  of  the  daughters,  making  an  assign¬ 
ment  of  mortgages  to  “  Ezra  A.  Bourne  of  Bosto?i.”  June 
28,  1848,  Charles  M.  Parker  “of  the  City,  County  and  State 
of  New  York,”  makes  a  conveyance  to  E.  A.  Bourne  and 
Mr.  Frothingham,  “  both  of  Boston.”  July  10,  1848,  the 
judge  of  probate  for  Suffolk  appoints  “  Ezra  A.  Bourne  of 
Boston,  in  said  county,”  guardian  of  Elizabeth  F.  Thorn¬ 
dike  and  Martha  S.  Thorndike,  “  minors  and  children  of 
Charles  Thorndike,  late  of  said  Boston.”  On  the  same  date 
a  guardian’s  bond  is  executed  by  Ezra  A.  Bourne  as  princi¬ 
pal  and  ffm.  Shimmin  and  H.  K.  Hall,  as  sureties,  “  all  of 
Bostoji  in  the  county  of  Suffolk.” 

So  much  for  1S48.  On  March  27,  1S49,  an  indenture  was 
made  between  Mary  A.  Thorndike  “  of  Boston ,”  and  E.  A. 
Bourne  “  of  Boston.” 

In  1S50,  June  19,  E.  A.  Bourne  “  of  Boston,  in  the  county 
of  Suffolk,”  assigns  a  mortgage  to  E.  T.  Loring.  April  22, 
1850,  E.  A.  Bourne,  guardian  of  Elizabeth  F.  and  Martha 
S.  Thorndike  “  of  Boston,”  renders  an  account  in  the 
Probate  Court. 


69 


In  1851,  March  21,  an  indenture  is  made  between  E.  A. 
Bourne  “  of  Boston ,”  and  Anna  D.  Thorndike,  also  11  of 
Boston .”  December  15,  1851,  E.  A.  Bourne  “  of  Boston,” 
assigns  a  mortgage  to  Thomas  Thompson  “  of  Brighton,  for¬ 
merly  of  Boston.” 

Upon  these  facts  could  the  jury  hesitate  for  a  moment  in 
coming  to  the  result,  that  the  plaintiff  not  only  had  no  domi¬ 
cil  in  point  of  fact ,  in  Newport,  in  May  1851,  but  that  he 
never  intended  to  change  his  domicil  from  Boston ;  that  his 
whole  effort  and  desire  was  to  gain  some  sort  of  residence 
out  of  Boston  for  the  purposes  of  taxation ,  and  for  no  other 
purpose,  and  thus  to  evade  the  law  and  compel  others  to  pay 
his  just  share  of  the  public  burthens  ;  that  he  meant  to  enjoy 
and  did  enjoy  the  benefits  of  our  municipal  institutions, 
without  paying  his  proportion  of  their  cost  ? 

But  could  this  be  so  ?  Was  it  possible  that  a  gentleman  of 
great  wealth,  of  a  decided  position  in  society,  of  a  well  estab¬ 
lished  character,  who  had  made  his  riches  in  Boston  ;  Avho 
had  lived  there  nearly  his  whole  life  ;  all  of  whose  habits  of 
thought  and  associations  were  connected  with  that  city — 
could  it  be  possible  that  he  had  for  years  been  endeavoring 
to  evade  his  just  proportion  of  the  taxes  in  the  municipality 
where  he  chose  to  live  ;  that  he  pretended  to  change  his 
domicil  when  he  had  no  real  intention  of  doing  so,  and  had 
been  content  to  share  the  privileges  for  which  he  was  unwil¬ 
ling  to  pay  ?  Could  this  be  so  ?  Was  there  such  a  man  liv¬ 
ing  ?  He  (Mr.  C.)  would  not  answer  this  question  broadly  in 
the  affirmative,  in  a  manner  that  might  be  deemed  offensive. 
The  facts  in  the  case  answered  it.  They  spoke  louder  than 
words  could  speak.  He  would  answer  it  in  language  that 
would  be  to  the  jury  like  an  orphic  saying,  for  they  would  not 
understand  it.  Did  they  ask  if  such  a  man  lives  ? 

VlVIT  ?  IMO  VERO  ETIAM  IN  SENATUM  VENIT  !  * 

Mr.  Sohier  then  addressed  the  jury,  in  substance  as  fol¬ 
lows  : — 


*  The  plaintiff  was  present  in  court  during  the  trial,  and  sat  by  his  counsel. 


70 


Gentlemen  of  the  Jury, — 

As  this  question  is  only  one  of  legal  domicil,  it  is  instruc¬ 
tive  to  see  the  pains  and  ingenuity  of  counsel  to  apply  to 
it  every  other  epithet  which  could  be  invented.  He  calls  it 
a  question  of  principle,  of  morals,  of  evasion  of  taxes.  He 
says  it  is  a  question  of  importance.  It  is  a  question  of  impor¬ 
tance,  but  not  of  the  importance  that  he  attributes  to  it.  The 
real  question  is,  can  or  cannot  a  man,  who  owns  two  houses 
in  different  places,  choose  where  he  will  be  domiciled,  though 
one  of  them  is  larger  than  the  other  ?  If  the  doctrine  of  the 
learned  counsel  is  correct,  no  man  can  change  his  domicil. 
No  man  who  owns  a  house  in  the  city  can  actually  get  out  of 
Boston,  especially  if  the  house  in  Boston  happens  to  be  the 
largest.  The  learned  counsel  calls  it  a  question  of  morals. 
According  to  the  morals  of  Boston,  it  is  immoral  to  pay  taxes 
into  any  treasury  except  into  the  Boston  treasury.  It  is  a 
question  of  morals.  If  this  is  an  illegal  tax,  it  is  immoral  in 
the  city  of  Boston  to  keep  it.  We  say  it  is  an  illegal  tax. 

If  a  person  has  a  house  in'Boston,  and  lives  in  the  country, 
they  say  it  is  an  evasion  of  taxes.  The  city  says,  you  have 
the  benefit  of  municipal  regulations,  and  therefore  should  pay 
taxes  in  the  city.  The  people  in  the  country  say,  in  the 
country  you  have  the  benefit  of  fresh  air  and  healthy  exercise, 
and  therefore  should  pay  taxes  in  the  country.  And  one  is  as 
reasonable  as  the  other. 

So  long  as  the  policy  of  the  city  government  continues  as 
at  present, — so  long  as  they  build  palaces  on  Deer  Island  for 
the  maintenance  of  foreign  paupers,  at  a  cost  of  $200,000, 
and  jails  at  a  cost  of  $500,000, — taxes  must  be  higher  in 
Boston  than  anywhere  else ;  and  so  long  will  people  desire  to 
be  taxed  elsewhere.  The  learned  counsel,  while  artfully 
alluding  to  your  supposed  prejudices,  has,  in  fact,  appealed  to 
your  prejudices  indirectly,  by  asking  why  we  try  the  case 
here.  He  says  it  is  because  you  are  supposed  to  have  preju¬ 
dices  in  favor  of  the  country,  and  against  the  city.  We  came 
here,  not  for  that  reason,  but  honestly  to  try  this  case.  He 
has  alluded  to  this,  that  you  might  give  him  a  verdict  in  or¬ 
der  to  avoid  being  thought  to  have  prejudices.  He  hoped 


71 


that  you  would  stand  up  so  straight  as  to  lean  backwards. 
The  learned  counsel  says  that  it  is  a  great  principle  that  there 
should  be  equality  in  taxation.  It  is  no  such  thing.  There 
never  was,  and  never  will  be,  equality  in  taxation.  The 
great  principle  is,  equality  and  liberty; — liberty  to  live  where 
we  please.  It  is  perfectly  idle  to  intimate  for  a  moment,  that 
you  would  be  governed  by  prejudice  to  give  a  verdict  against 
the  city.  The  learned  counsel  himself  has  been  doing  all 
he  could  to  stir  up  prejudice,  on  the  ground  that  the  plaintiff 
is  rich.  I  will  tell  the  learned  counsel  why  we  came  here, 
that  he  may  not  go  down  to  the  grave  in  ignorance.  We 
came  here  to  avoid  prejudices.  Mr.  Bourne  is  a  citizen  of 
Newport,  and  has  a  right  to  select  any  county  he  pleases  to  try 
this  case  in.  We  should  be  very  foolish  if  we  had  brought  this 
case  in  Boston,  and  given  the  learned  counsel  an  opportunity 
of  appealing  to  the  prejudices  of  the  citizens  of  Boston,  and 
to  accuse  the  plaintiff  of  shirking  his  taxes.  They  take  his 
money  by  force  of  legal  process,  and  under  protest,  and  when 
he  has,  in  advance,  notified  them  not  to  assess  him  ;  and  then 
call  him  a  shirk,  and  say,  why  don’t  you  come  into  our  court 
house,  and  let  us  see  you  try  to  get  it  back  ?  Gentlemen,  if 
you  are  satisfied  that  the  plaintiff  had  a  legal  domicil  in 
Boston  on  the  1st  day  of  May,  1851,  we  shall  not  have  a 
word  to  say.  But  if  you  say  he  had  not  a  legal  domicil  in 
Boston  on  that  day,  we  ask  you  to  give  a  verdict  according 
to  the  facts. 

This  is  an  action  to  recover  $3571.50,  assessed  to  the 
plaintiff  in  three  distinct  tax  bills ;  one  made  out  to  Ezra  A. 
Bourne,  personally  ;  one  to  Ezra  A.  Bourne,  as  trustee  for 
Mrs.  M.  M.  Bourne ;  and  the  third  and  largest  to  Ezra  A. 
Bourne,  as  guardian  and  trustee  of  the  Misses  Thorndike. 
By  the  law  of  the  land,  if  he  was  not  an  inhabitant  of  Boston 
at  that  time,  on  the  1st  day  of  May,  1851, — if  he  was  not 
legally  domiciled  in  Boston  on  that  day, — this  is  an  illegal 
tax.  Mr.  Bourne  owes  a  duty  to  himself,  and  to  these  young 
ladies,  whose  property  is  entrusted  to  his  care,  to  bring  an 
action  to  recover  back  the  amount  of  this  tax.  How  can  he 
reconcile  it  to  his  duty,  if  he  honestly  believes,  as  he  does 


72 


believe,  that  this  is  an  illegal  tax,  to  lie  by,  and  let  that  tax 
be  collected  out  of  the  property  with  which  he  has  been  en¬ 
trusted  ? 

The  question  is,  where  was  his  legal  domicil  on  the  1st 
day  of  May,  1851  ?  It  is  an  axiom  in  law,  that  a  man  can 
have  but  one  legal  domicil.  But  that  one  domicil  may  be 
just  where  he  pleases.  It  is  his  intention  that  shall  govern 
where  it  is.  The  learned  counsel  has  cited  cases  in  relation 
to  residence,  not  where  the  decision  was  in  regard  to  taxes, 
but  has  taken  one  case  where  the  question  was  merely  in  re¬ 
lation  to  voting  ;  another  that  related  to  some  probate  matter  ; 
also  the  case  of  Sea7-s  v.  City  of  Boston,  where  the  party 
went  to  Europe,  with  the  intention  to  come  back  and  to  be  a 
citizen  of  Boston.  Side  by  side  with  that  case  is  another, 
where  the  party  removed,  and  did  not  intend  to  come  back  ; 
the  case  of  Thorndike  v.  Boston ,  where  the  decision  was  in 
favor  of  the  plaintiff.  Yet  Mr.  Thorndike  owned  a  house  in 
Boston,  and  had  personal  property  in  Boston.  The  question 
is  not,  whether  this  property  escapes  taxation ;  the  question 
is,  where  was  the  plaintiff’s  domicil  on  the  1st  day  of  May, 
1851  ?  I  will,  with  the  permission  of  the  Court,  read  to  the 
jury,  in  order  to  illustrate  my  position,  from  the  case  of 
Lyman  v.  Fiske,  in  17  Pickering’s  Reports,  page  231.  The 
plaintiff  owned  two  houses,  one  in  Boston,  and  one  in  Wal¬ 
tham,  and  he  was  taxed  in  Waltham.  In  that  case,  the  Court 
mention  two  things  as  necessary  to  constitute  a  residence  ; 
an  actual  residence  in  a  place,  and  an  intention  to  make  that 
place  his  home.  The  Court  say,  “  The  act  and  intent  must 
concur,  and  the  intent  may  be  inferred  from  declarations  and 
conduct.  It  is  often  a  question  of  great  difficulty,  depending 
upon  minute  and  complicated  circumstances,  leaving  the 
question  in  so  much  doubt,  that  a  slight  circumstance  may 
turn  the  balance.  In  such  a  case,  the  mere  declaration  of  the 
party,  made  in  good  faith,  of  his  election  to  make  the  one 
place,  rather  than  the  other,  his  home,  would  be  sufficient  to 
turn  the  scale.”  They  say  further,  “  The  election  of  a  man 
to  pay  taxes  in  one  town  rather  than  another,  may  be  a  good 
motive  and  a  justifiable  reason  for  changing  his  habitancy  ; 


73 


and  if  such  election  is  followed  up  by  corresponding  acts,  by 
which  he  ceases  to  be  an  inhabitant  of  the  one,  and  becomes 
an  inhabitant  of  the  other,  his  object  may  be  legally  accom¬ 
plished.” 

Now,  what  was  the  intention  of  Mr.  Bourne  ?  If  a  man 
can  live  where  he  chooses,  his  intention  is  the  main  thing. 
I  don’t  care  what  his  motive  was.  If  his  intention  was  to 
pay  his  tax  in  Newport,  it  was  a  perfectly  legal  and  proper 
motive.  Our  position  is,  that  in  point  of  fact  he  was  a  citi¬ 
zen  of  Newport.  But  if  he  was  not  a  citizen  of  Newport,  he 
was  not  a  citizen  of  Boston.  If  he  went  out  of  the  State, 
and  had  not  gained  a  residence  in  Newport,  his  old  residence 
was  in  Brookline.  If  not  a  resident  of  Newport,  he  was  a 
resident  of  Brookline,  and  Boston  had  no  right  to  claim  him. 
There  were  no  less  than  three  residences,  any  one  of  which 
Mr.  Bourne  might,  if  he  chose,  have  made  his  legal  domicil. 
He  had  a  house  in  Boston,  another  in  Newport,  and  another 
in  Maryland.  He  had  hired  a  house  in  Newport  for  four 
years,  and  taken  a  lease  of  it.  Further,  Mr.  Bourne  had  long 
since  retired  from  business  ;  he  had  nothing  to  occupy  himself 
except  to  take  care  of  the  few  stocks  which  he  had  the  care 
of  in  Boston.  In  point  of  fact,  he  was  living  in  Newport, 
he  and  his  wife,  on  the  1st  day  of  May,  and  on  the  29th  of 
April,  1851.  This  is  all  proved  and  admitted.  This  is  a 
question,  in  the  first  place,  of  intention  ;  and  on  a  question  of 
intention,  the  declarations  of  a  party  are  evidence.  If  his 
motive  in  going  down  there  was  to  pay  his  tax  there,  he  had 
a  right  to  do  so.  This  is  not  a  question  of  liberality,  but  a 
question  of  right.  The  question  is  not  what  it  would  be 
liberal  for  Mr.  Bourne  to  give  to  the  city  of  Boston,  but  what 
they  have  a  right  to  take  from  him  against  his  will.  He  was 
a  citizen  of  Boston  up  to  1848.  Then  he  became  dissatisfied, 
and  moved  out  of  the  city,  and  gained  a  residence  elsewhere. 
He  sent  a  notice,  about  which  much  was  said  by  the  learned 
counsel  for  the  city.  If  he  had  not  given  such  a  notice, 
there  would  have  been  a  great  hue-and-cry  about  his  going 
slily  out  of  town  to  escape  taxation;  that  he  moved  out  of 

town  without  giving  notice,  and  the  assessors  therefore  were 
10 


74 


not  enabled  to  apportion  the  tax  equally  upon  the  citizens 
who  remained.  The  learned  counsel  says  he  did  too  much. 
If  he  had  not  given  notice  every  year,  they  would  have  said 
that  he  did  too  little.  They  knew  perfectly  well  what  his 
intention  was.  He  went  to  Brookline.  He  made  no  misrep¬ 
resentation  to  the  assessors  of  Brookline.  He  let  them  doom 
him.  It  is  the  right  of  every  citizen  to  do  so.  He  had 
ceased  to  become  a  citizen  of  Boston.  He  could  not  have 
voted  there,  nor  have  sent  his  children  to  the  public  schools. 
He  would  have  been  indicted  if  he  had  attempted  to  vote  in 
Boston.  Boston  had  recognised  his  having  ceased  to  be  a 
citizen,  by  forbearing  to  tax  him.  He  had  not  regained  a  resi¬ 
dence  in  Boston.  He  went  to  Maryland  a  part  of  the  year  to 
see  to  his  farm,  which  takes  much  more  time,  and  trouble,  and 
care,  than  to  take  his  few  dividends  in  Boston,  of  which  so 
much  has  been  said.  The  same  vigilant  assessors  were  in 
Boston  in  1850,  but  they  did  not  pretend  to  tax  him.  Mr. 
Bourne  did  the  same  in  1850  that  he  did  before  and  in  pre¬ 
vious  years.  He  was  never  taxed  in  1852,  even  after  this 
suit  was  brought.  It  was  mere  pride  of  opinion  in  these  as¬ 
sessors,  which  induced  them  to  bring  this  suit,  and  induces 
them  to  take  so  much  pains  to  prosecute  it;  probably  that 
very  assessor,  who  was  gyrating  around  the  plaintiff’s  house 
in  the  summer  of  1851,  and  who  says  that  he  advised  the  as¬ 
sessment  of  this  tax.  They  have  hunted  up  all  these  old 
servants  of  Mr.  Bourne,  whether  discarded  or  otherwise, 
and  have  brought  them  here  to  help  make  out  their  case. 

Mr.  Bourne  never  regained  any  residence  in  Boston  in  1850. 
There  is  no  proof  of  any  such  residence.  He  showed  his 
intention  not  to  reside  in  Boston  in  1848,  1S49,  and  1S50. 
The  city  knew  it,  and  acquiesced  in  it.  The  taxes,  it  is  said, 
are  assessed  in  Newport  in  August.  Very  true  ;  but  they  were 
also  assessed  in  August  1850.  Mr.  Bourne  had  repeatedly 
shown  his  intention  by  his  declarations  and  by  his  acts ;  yet 
they  put  him  to  all  this  trouble  and  expense.  They  have  not 
shown  a  single  declaration  of  his,  or  brought  a  tittle  of  evi¬ 
dence,  to  prove  his  intention  to  gain  a  residence  in  Boston. 

So  much  for  his  intention.  I  will  now  ask  your  attention 


75 


for  a  moment  to  his  doings.  You  have  the  evidence  of  Mrs. 
Rice,  his  daughter-in-law,  of  Mrs.  Tirrell,  his  sister-in-law, 
and  of  Mr.  Hammond,  where  he  made  his  purchases,  that  he 
was  in  Newport  on  the  1st  day  of  May.  Mrs.  Rice’s  testi¬ 
mony  is  valuable,  because  it  shows  the  habits  of  the  family 
for  years.  The  evidence  shows  distinctly  that  Mr.  and  Mrs. 
Bourne  were  not  in  Boston  on  the  1st  day  of  May.  It  ex¬ 
plains  everything  they  have  put  in  here. 

(Mr.  Sohier  here  recapitulated  the  evidence.) 

The  learned  counsel  has  dwelt  a  great  deal  upon  the  fact 
that  Mrs.  Rice  called  this  her  mother’s  house  ;  and  has  quoted 
poetry,  and  talked  very  sentimentally  about  a  man’s  home. 
But  the  fact  was,  it  was  her  mother’s  home.  It  was  bought 
with  her  mother’s  money,  and  was  held  by  Mr.  Bourne  in 
trust  for  her,  and  taxed  as  her’s.  It  was  her’s  before  she  was 
married  to  Mr.  Bourne.  These  young  ladies,  no  doubt,  con¬ 
tracted  the  habit  of  calling  it  their  mother’s  house  before  the 
marriage.  Mrs.  Tirrell  recollects  dining  with  Mr.  and  Mrs. 
Bourne  at  their  house,  on  the  1st  day  of  May,  1851.  She 
recollects  it  because  it  was  May-day,  which  is  kept  as  some 
sort  of  a  holiday  at  the  South.  It  would  not  have  been  an 
easy  thing  to  have  obtained  the  testimony  of  the  casual  cook 
whom  they  employed  for  the  short  time  they  staid  there,  be¬ 
fore  they  went  South.  If  we  had  had  the  whole  constabu¬ 
lary  force,  and  all  the  watchmen  of  the  city  of  Boston  at 
our  command,  perhaps  we  might  have  done  so.  But  if  we 
had  obtained  the  cook,  they  would  have  asked  why  we 
did  not  obtain  the  evidence  of  Mrs.  Tirrell.  There  is  no 
such  thing  as  satisfying  them.  They  are  like  the  man  who 
was  flogged  by  the  Irish  drummer,  and  kept  asking  him  to 
strike  higher,  and  to  strike  lower,  until  the  drummer  ex¬ 
claimed  in  despair,  that  there  was  no  such  thing  as  pleasing 
him,  let  him  strike  where  he  would. 

The  learned  counsel  cannot  say  anything  against  these 
witnesses.  He  says  he  admits  that  Mr.  and  Mrs.  Bourne  were 
in  Newport  on  the  1st  day  of  May,  1851.  They  shut  up  the 
house  while  they  went  to  Maryland.  They  cannot  show  any 
living  in  Boston  afterwards.  The  counsel  has  given  a  long 


76 


oration  upon  home,  as  described  in  poetry  and  ballads.  In  this 
case,  we  have  nothing  to  do  with  such  definitions  ;  home  has  a 
legal  meaning.  Emigrants  from  New  Hampshire  speak  of  their 
home  in  their  native  State  ;  emigrants  from  Europe,  of  their 
home  across  the  water ;  but  they  are  all  legally  domiciled 
here.  Mr.  Bourne  meant  to  come  back  to  Boston  for  the  winter, 
as  a  sojourning  place,  but  not  as  a  permanent  abiding  place, — 
as  a  legal  domicil.  The  city  of  Boston  would  never  lose  a 
tax,  if  this  doctrine  of  the  learned  counsel  should  prevail. 
Did  Mr.  Bourne  intend  to  come  back  for  legal  municipal 
privileges?  Would  he  gain  any  right  to  vote  ?  Would  he 
have  any  right  to  send  his  children  to  school  ?  The  fact  that 
he  lent  his  horse  to  his  daughter,  and  allowed  her  to  use  his 
carriage,  amounts  to  nothing.  As  to  all  this  evidence,  such 
a  mass  of  idle,  insufficient  testimony,  never  was  got  together 
by  the  combined  efforts  of  the  whole  Boston  police.  If  a 
man  has  a  large  and  handsome  house  in  Boston,  on  which  he 
pays  a  large  tax,  and  is  losing  rent,  he  has  a  right  to  use  it. 
All  these  facts  are  facts  for  the  jury  to  consider,  but  the  jury 
will  also  say,  what  weight  they  will  have.  He  had  hired 
servants ;  he  must  put  them  somewhere ;  he  was  obliged  to 
keep  the  house  open,  and  it  was  most  natural  that  he  should 
put  the  servants  there,  until  he  could  come  home  from  Mary¬ 
land,  so  that  they  should  be  under  the  control  of  Mrs.  Bourne, 
who  was  obliged  to  be  with  her  daughter,  in  her  hour  of  danger 
and  distress.  As  to  his  furnishing  provisions  to  his  servants, 
it  would  be  very  strange  if  he  did  not  furnish  them  with  pro¬ 
visions.  The  bills  were  larger  on  account  of  Mrs.  Rice. 
Mr.  Bourne  has  always  pursued  the  same  course.  Had  he 
not  a  right  to  come  to  his  house,  and  stop  there,  when  in 
Boston  ?  Had  he  not  a  right  to  use  his  own  house  ?  The 
argument  of  the  learned  counsel  would  destroy  all  rights  of 
property.  Mr.  Bourne  paid  all  the  bills  for  provisions  and 
groceries,  as  he  had  a  right  to.  As  to  the  brandy  and  claret,  it 
was  probably  carried  to  Newport.  It  was  charged  about  the 
time  that  he  went  to  Newport.  As  to  the  carriage,  why 
should  it  not  be  left  in  Boston?  There  was  no  law  against 
allowing  his  daughter  to  use  it. 


77 


Then  the  learned  counsel  has  put  in  the  fact,  that  here  was 
a  large  amount  of  property.  Was  it  his  object  fairly  to  show 
that  the  domicil  of  the  plaintiff  was  in  Boston ;  or  was  it 
rather  to  induce  you  to  give  a  verdict  against  the  plaintiff  be¬ 
cause  he  is  rich  ?  It  is  a  new  doctrine,  that  when  a  man 
moves,  he  is  obliged  to  carry  away  his  stocks,  however  well 
invested  they  may  be.  A  great  part  of  the  stocks  in  Boston 
are  owned  elsewhere.  Why  should  he  change  these  invest¬ 
ments,  if  they  were  well  invested?  As  to  calling  himself  of 
Boston  in  deeds,  that  was  a  mere  matter  of  habit.  In  mat¬ 
ters  of  description  he  may  describe  himself  as  of  what  place 
he  pleases.  Deeds  are  made  out  by  counsel,  by  scriveners,  who 
think  nothing  about  these  matters  of  domicil  and  taxation. 
This  matter  is  entitled  to  no  consideration  whatever. 

It  is  admitted  that  the  plaintiff  left  Boston  as  his  legal 
home  iti  184S,  that  he  continued  to  reside  elsewhere,  in  1849 
and  1850.  In  1849  his  legal  home  was  in  Brookline.  If  he 
had  not  gained  a  residence  in  another  State,  his  legal  home 
remained  in  Brookline.  He  had  made  repeated  declarations 
of  his  intention  to  reside  elsewhere  than  in  Boston.  On  the 
1st  day  of  May,  1851,  he  was  bodily  in  Newport.  He  paid 
taxes  there.  The  burden  of  proof  is  on  the  city  to  show  that 
he  changed  his  residence  to  Boston.  If  he  was  not  a  resident 
of  Boston  at  that  time,  we  are  entitled  to  your  verdict. 

Mr.  Chandler  then  asked  the  Court  to  rule  as  follows  : — 

1.  If  the  plaintiff  went  to  Newport  solely  for  the  purpose 
of  paying  taxes  there,  and  of  evading  the  taxes  in  Boston, 
and  not  with  the  bona  fide  intention  of  making  that  his  home, 
then  he  did  not  thereby  gain  a  domicil  in  Newport. 

2.  If  the  plaintiff  had  his  legal  domicil  in  Boston  in  the 
winter  of  1849-50,  and  went  to  Newport  before  May  1st, 
with  the  present  intention  of  returning  to  Boston  in  the 
autumn,  he  did  not  thereby  change  his  domicil  for  purposes 
of  taxation. 

3.  If  the  plaintiff,  in  the  winter  of  1851,  had  his  legal 
domicil  in  Boston,  and  went  to  Newport,  with  the  present  in¬ 
tention  of  returning  to  Boston  in  the  autumn,  he  did  not 
thereby  change  his  domicil  for  the  purposes  of  taxation, 


78 


4.  If  the  jury  believe  that  the  plaintiff,  in  1848-9,  ac¬ 
quired  a  domicil  in  Brookline,  still,  if  he  returned  to  his  house 
in  Boston,  with  the  intention  of  not  returning  to  Brookline, 
he  acquired  a  domicil  in  Boston. 

5.  The  fact  of  a  person’s  paying  a  tax  in  any  place  is  not 
conclusive  evidence  of  domicil,  but  is  one  circumstance  tend¬ 
ing  to  show  it. 

His  Honor,  Judge  Thomas,  charged  the  jury  substantially 
as  follows,  upon  the  law  applicable  to  this  case  : — 

The  action  was  brought  by  the  plaintiff  against  the  city  of 
Boston  to  recover  the  amount  of  a  tax,  paid  by  the  plaintiff 
under  protest,  and  which  he  avers  was  illegally  assessed. 

And  he  says  it  was  illegally  assessed,  because,  on  the  first 
day  of  May,  1851,  he  was  not  an  inhabitant  of  Boston,  but 
was  an  inhabitant  of  Newport,  in  the  state  of  Rhode  Island. 

The  only  question  for  the  jury  to  determine  was,  whether 
on  such  first  day  of  May,  1851,  the  legal  home  of  the  plain¬ 
tiff,  his  domicil  or  fixed  place  of  residence,  was  in  Newport  or 
Boston. 

As  they  should  find  this  fact,  would  be  their  verdict ;  if  in 
Newport,  for  the  plaintiff,  if  in  Boston,  for  the  defendants. 

The  duty  of  the  jury  was  to  ascertain  the  truth  ;  the  law 
settled  the  results. 

The  rules  of  law  upon  the  subject  of  domicil  were  plain 
and  familiar. 

The  difficulty  was  in  the  application  of  these  rules. 

No  two  questions  of  domicil  will  be  found  to  be  precisely 
alike,  and  each  case  must  be  determined  by  a  careful  applica¬ 
tion  of  general  rules  to  its  own  peculiar  facts  and  circum¬ 
stances. 

Every  person  has  a  domicil  somewhere,  and  he  can  have 
but  one  domicil  of  taxation,  under  the  laws  of  this  common¬ 
wealth,  at  one  and  the  same  time. 

That  is  the  domicil  of  a  person  in  which  his  home  is  fixed, 
without  any  present  intention  of  removing  therefrom.  Under 
this  rule,  it  would  be  seen,  two  things  must  concur  to  consti¬ 
tute  a  legal  domicil ;  first,  residence,  and  secondly,  the  inten- 


79 


tion  to  make  the  place  of  residence  the  home  of  the  party ; 
there  must  be  the  fad  and  the  intent . 

And  when  a  person  removes  from  one  place  to  another, 
with  the  intention  of  making  the  place  to  which  he  removes 
his  permanent  residence,  such  place  becomes  instantaneously 
his  place  of  domicil. 

No  time  is  necessary  to  fix  or  mature  it.  The  fad  and  the 
intent  are  all  that  is  required. 

But  when  a  person  has  a  fixed  domicil,  he  does  not  lose  it 
by  absence  for  any  purpose  of  a  temporary  nature,  with  the 
intention  of  returning  ;  as  by  absence  on  a  voyage  at  sea,  or  a 
journey  however  protracted,  or  a  summer’s  residence  at  a 
watering  place. 

Such  departures  or  absences  have  no  legal  force  or  effect 
to  change  the  domicil  of  the  party,  because  the  party  has  no 
intent  or  purpose  to  change  it.  The  consent  of  the  mind  is 
wanting. 

Under  our  laws  a  man  may  change  his  domicil  whenever  it 
pleases  him  to  do  so. 

He  may  go  where  he  pleases. 

He  may  go  for  whatever  motive  he  pleases. 

He  has  a  perfect  right,  in  law,  to  change  his  domicil  with 
the  view  to  diminish  his  taxes. 

His  motive  for  the  change  is  not  material,  if,  in  point  of 
fact  and  intent,  the  change  is  made. 

But  he  cannot  have  a  domicil  of  taxation  in  one  place,  and 
his  permanent  residence  and  home  in  another. 

And  upon  the  question  whether  there  was,  in  good  faith,  a 
change  of  domicil,  the  jury  may  consider  and  weigh  the  fact 
of  the  diminution  of  taxes,  and  if  they  are  of  opinion  that  the 
going  to  Newport  was  colorably  done  for  the  purpose  of 
avoiding  taxation  in  Boston,  and  not  with  the  view  of  making 
Newport  his  home,  the  plaintiff’s  domicil  continued  in  Boston, 
and  he  cannot  maintain  this  action. 

All  the  evidence  in  the  case,  of  his  declarations,  of  his  busi¬ 
ness,  of  his  way  of  life,  is  important  only  as  it  throws  light 
on  the  question,  whether,  on  the  first  day  of  May,  1851,  the 
plaintiff  had  his  home  in  Newport  or  in  Boston. 


80 


The  fact  of  his  being  in  Newport  on  the  first  day  of  May, 
the  declaration  of  his  purpose  to  become  a  citizen  and  to  be 
taxed  there,  are  evidence  tending  to  show  a  change  of  dom¬ 
icil,  but  they  are  not  conclusive. 

Applying  the  rules  of  law  before  stated,  the  question  must 
be  determined  upon  the  whole  evidence. 

The  jury,  after  an  absence  of  about  an  hour,  returned  a 
verdict  for  the  defendants. 


Trials „ 


L65838 

DATE 


vr»l,14, 

ISSUED  TO 


Cfo/-/4? 


